Balla v Roberto Bei as Executor of the Estate of the Late Giovanni Bei
[2020] WASC 348
•6 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BALLA -v- ROBERTO BEI as Executor of the Estate of The Late Giovanni BEI [2020] WASC 348
CORAM: SMITH J
HEARD: 2 & 3 JULY 2020
DELIVERED : 6 OCTOBER 2020
FILE NO/S: CIV 2939 of 2018
BETWEEN: NADIA BALLA
First Plaintiff
NEVIA MORELLI
Second Plaintiff
AND
ROBERTO BEI as Executor of the Estate of The Late Giovanni BEI
First Defendant
GRAZIELLA PALA
Second Defendant
ROBERTO BEI
Third Defendant
Catchwords:
Succession - Inheritance - Small estate - Adequate provision for proper maintenance, support or advancement in life - Applications by adult children under s 7(1)(c) of the Family Provision Act 1972 (WA)
Succession - Inheritance - Proof of paternity - Statutory test for claim - Whether second plaintiff a child of the deceased - Standard of proof - Family Provision Act s 4(2) and s 4(3) - 'Reasonable satisfaction' - Briginshaw v Briginshaw test considered
Evidence - Expert evidence - Foreign law - Qualifications - Italian Civil Code - Effect of 'life facts' recorded on Deed of Birth of second plaintiff - Whether declaration made by deceased admission of parentage during deceased lifetime
Succession - Inheritance - Moral claim - Whether second defendant as a beneficiary of deceased will but not an eligible claimant within s 7 of the Family Provision Act has a moral claim and if so relevant considerations in determining claims of plaintiffs under s 6(1) of the Family Provision Act
Legislation:
Family Law Act 1975 (Cth), div 7
Family Provision Act 1972 (WA), s 4, s 4(2), s 4(3), s 4(4), s 6, s 6(1), s 7(1)(c), s 21A(2), s 21A(8)
Result:
Orders made for provision
Category: B
Representation:
Counsel:
| First Plaintiff | : | Ms R Cosentino |
| Second Plaintiff | : | Ms R Cosentino |
| First Defendant | : | In person |
| Second Defendant | : | Mr S Macdonald |
| Third Defendant | : | In person |
Solicitors:
| First Plaintiff | : | Jacobson & Associates |
| Second Plaintiff | : | Jacobson & Associates |
| First Defendant | : | In person |
| Second Defendant | : | Macdonald Rudder |
| Third Defendant | : | In person |
Case(s) referred to in decision(s):
Auxil Pty Ltd v Terranova [2009] WASCA 163
Andre v Perpetual Trustees WA Ltd [2009] WASCA 14
Bondelmonte v Blanckensee [1989] WAR 305
Braun v Australian Executor Trustees Ltd [2014] WASC 210
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Butcher v Craig [2009] WASC 164
Butcher v Craig [2010] WASCA 92
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
Daniels v Hall [2014] WASC 152
Dean v Collins [No 2] [2015] WASCA 151
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
G v H [1994] HCA 48; (1994) 181 CLR 387
Goodchild v James (1994) 13 WAR 229
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kitson v Franks [2001] WASCA 134
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lemon v Mead [2017] WASCA 215
Lysaght v Lysaght [2018] WASC 88
M v H (Unreported, WASC, BC9506595)
Macgregor v Macgregor [2003] WASC 169
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marks v Marks [2003] WASCA 297
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Buckland [1966] VR 404
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Sweeney v Castle [2014] WASC 266
Taylor v Farrugia [2009] NSWSC 801
The Public Trustee as Administrator of the Estate of Jeffrey Stephen Alau v The Public Trustee of Queensland as Administrator of the Estate of Ellen Padal Pearson [2011] WASC 321
The Public Trustee v Gulvin [2004] WASC 140
Triplett v Triplett (Unreported, WASC, Library No 8146, 16 March 1990)
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Waddingham v Burke [2015] WASC 65
Wheat v Wisbey [2013] NSWSC 537
TABLE OF CONTENTS
1.0 The applications for family provision
2.0 The orders sought by Nadia and Nevia for provision out of the estate
3.0 The evidence
3.1 The relevant facts
3.2 The questions for determination in the applications for further provision and the relevant principles
4.0 Nevia's standing to make a claim for provision - Is Nevia a child of Giovanni?
4.1 Paternity - child of a deceased - the standard of proof
4.2 The evidence of Nevia's paternity
4.2.1 Relevant principles that apply to expert evidence to prove foreign law
4.2.2 The matters stated on Nevia's Deed of Birth translated by an accredited professional interpreter/translator
4.2.3 The evidence given by an Italian lawyer
4.2.4 Other evidence given in the proceedings relevant to Nevia's paternity
4.2.5 Conclusion - Nevia is a child of Giovanni
5.0 The first stage - The jurisdictional question - in what circumstances will it be found that the will of a deceased has made inadequate provision for an applicant?
5.1 Nevia and Nadia's financial circumstances as at the day Giovanni died and as at the time of the hearing of the applications
5.1.1 Nevia's financial circumstances
5.1.2 Nadia's financial circumstances
5.1.3 Roberto's financial circumstances
5.1.4 Graziella's financial circumstances
5.2 Has inadequate provision been made for Nevia and Nadia in Giovanni's will?
6.0 The second stage - The assessment and exercise of discretion - What orders for adequate provision (if any) can be made in favour of an adult applicant where the estate is small?
6.1 Exercise of the discretion to make orders for provision for the plaintiffs
7.0 Conclusion
SMITH J:
1.0 The applications for family provision
For clarity and intending no disrespect, in these reasons, I refer to the parties and their family members by their first names (after they are introduced).
The plaintiffs, Nadia Balla and Nevia Morelli, have applied for orders for adequate provision to be made for their proper maintenance, support or advancement in life out of the estate of their late father, Giovanni Bei.
Giovanni died on 26 October 2016, aged 85. A few months before he died he married Ms Mena Monte. Mena is not a beneficiary of Giovanni's estate and she has made no claim for provision.
Prior to marrying Mena in 2016, Giovanni was a widow. He married Enrica Mariani on 12 February 1955 in Italy. Enrica died on 10 August 2012.
Giovanni and Enrica together raised five children:
(a)Nevia (born 15 May 1952) now 68 years of age;
(b)Claudio (born 29 April 1955) now 65 years of age;
(c)Nadia (born 12 August 1957) now 63 years of age;
(d)Katia (born 1958, deceased 1959); and
(e)Roberto (born 23 December 1960) now 59 years of age.
In 1966, Giovanni and Enrica, together with Nevia, Claudio, Nadia and Roberto, emigrated from Italy to Australia.
Giovanni made his last will, just over five weeks before he died, on 16 September 2016. He appointed Xuan Vinh Nguyen as executor and trustee, unless he was unable or unwilling to act, in which case he appointed Roberto as executor and trustee.
After Giovanni died, Mr Nguyen renounced probate, and on 14 June 2018, probate of Giovanni's will was granted to Roberto. Roberto is a party to these proceedings as executor and as a beneficiary.
Roberto is the only child of Giovanni who is a beneficiary of Giovanni's estate.
Nadia, Nevia and Claudio are not beneficiaries of Giovanni's will. However, Claudio makes no claim for provision against Giovanni's estate.
The terms of Giovanni's will appointed his executor and trustee to hold his estate on trust, for the payment of all estate or succession duties, debts, legacies, funeral and testamentary expenses, and any other costs, fees or expenses associated with his death or the administration of his estate, and the residue of his personal and real estate to be divided in the following portions:
(a)50% to Roberto (but if he dies first then his share is to be given to his (Giovanni's) friend, Graziella Pala); and
(b)50% to his friend Graziella Pala.
Graziella Pala was born on 6 October 1968 in Italy. She moved to Australia on 23 July 1998. Graziella is now aged 51.
The estate of Giovanni is small. It was comprised at the time of hearing the applications, of cash at bank, in the sum of $282,959.45,[1] and a 2013 Toyota Kluger which is valued at approximately $14,900.[2] The total value of these items is $297,859.45.
[1] Exhibit 9.
[2] Exhibit A, Tab 3, pages 3 ‑ 12.
2.0 The orders sought by Nadia and Nevia for provision out of the estate
The plaintiffs seek orders that they receive provision from Giovanni's estate in the form of a cash payment.
Nadia seeks an order requiring Roberto, as executor, to pay her an amount equivalent to 20% of the value of the residue of Giovanni's estate.
Nevia seeks an order requiring Roberto, as executor, to pay her an amount equivalent to 30% of the value of the residue of Giovanni's estate.
Roberto does not oppose Nadia or Nevia's applications for provision, but seeks that provision for Nadia and Nevia be made out of Graziella's share of the estate.
Graziella opposes any order for provision for Nadia or Nevia and seeks an order that their applications be dismissed.
3.0 The evidence
The evidence‑in‑chief was given on affidavit sworn by Nadia, Nevia and Graziella. An affidavit sworn by Roberto which set out the assets and liabilities of the estate as at 13 January 2020 was also tendered into evidence. Roberto gave oral evidence of his personal and financial circumstances.
Prior to the trial an issue was raised on behalf of Graziella as to whether Nadia and Nevia are children of Giovanni. The challenge to Nadia's paternity was subsequently resolved, but Nevia's paternity remained in issue. In response, an Italian lawyer, Ms Maria Clelia Talò, prepared a report and gave evidence about the meaning and legal effect in Italian law of notations of Nevia's Deed of Birth, and the principles of Italian paternity law as it applied when Nevia was born in 1952 and when Giovanni and Enrica married in 1955.
With the exception of Graziella, I am satisfied that each of the witnesses gave their evidence truthfully. I have reservations about the evidence given by Graziella which I address below.
3.1 The relevant facts
The relevant facts are largely uncontroversial. There is a factual dispute between Nevia and Graziella as to how often and how much time Nevia spent with Giovanni after Enrica died. Although Graziella was not candid in disclosing fully her financial position to the court and gave unsatisfactory answers to a number of questions put to her in cross‑examination, I accept that Graziella regarded Giovanni as a father figure and became a very close friend of his after Enrica died and provided him with friendship and support until he died.
I also accept that Giovanni may have made disparaging remarks to Graziella from time to time about Nevia, Nadia, Claudio and Roberto, but I do not accept that it was Nadia and Nevia's fault that they, over time, became estranged from Giovanni.
It is not in dispute that until Enrica died on 10 August 2012 that Giovanni had a very close and loving relationship with Nevia, Nadia and Roberto. It is also not in dispute that Roberto had a close and loving relationship with Giovanni until he died.
When the family moved to Australia in 1966, Nevia was 14 years old, Nadia was nine years old and Roberto was six. None of the family spoke English when they arrived in Australia.
Nevia did not go to school in Australia and started working as soon as they arrived in Western Australia at a Peters ice cream factory.
Enrica also got a job in a factory when she came to Australia.
Enrica and Giovanni owned a fish and chip shop from the early 1970s until sometime in the 1980s.
Nevia married Antonio Morelli on 31 October 1970 when she was 17. Between 1973 and 1980, Nevia worked at the fish and chip shop without pay. Nevia continued to work at the fish and chip shop until her third daughter Monica was born on 4 May 1980. Nevia then left the workforce and did not return until 1992 when she started work part‑time in a supermarket on a checkout. Between 1999 and 2015, Nevia became the manager of the freezer department.
Nadia left school when she was aged 13 and started work. When she started work Giovanni was not employed. At that time, Nadia contributed all her earnings to the family. Between 1970 and 1972, Nadia worked full-time in various supermarkets and also worked in the fish and chip shop. Like Nevia, Nadia was not paid for this work. She continued to work at the fish and chip shop until 1975. In 1976, Nadia married Luciano Balla at the age of 18. She continued to work full‑time in a supermarket on the checkout until 1988 when she gave birth to her second son. She did not work until 1992 as she was during this period caring for her three boys. In 1992, she started work part‑time in a seafood business packing seafood. By 1994, she was working in the business full‑time, and by 2000 she was working in the sales department. In or about 2000, she commenced full-time employment with Watsonia as an account sales manager and left in 2002 to start up a gourmet deli in the Midland Markets. In 2005, she sold the deli and returned to the seafood business and worked part‑time. In 2006, she commenced her current employment as an administration officer for the Department of Mines, Industry Regulation and Safety.
Prior to being married both Nevia and Nadia lived with Enrica and Giovanni. After they married they lived close to each other, and Enrica and Giovanni.
Nevia and Nadia continue to live close to each other. Together with their respective spouses they own adjoining properties in East Cannington.
Roberto was a teenager when his parents owned the fish and chip shop. Roberto left school at age 14 and worked for Malvern Star assembling bicycles. It appears that Roberto had a number of jobs until 1980 when he had a workplace accident in which he sustained a head injury, leaving him paralysed on his left side, with blurred and double vision, a speech impediment and lacking strength in one of his arms and legs. Following the accident he was in hospital for three months and was an outpatient at Shenton Park Rehabilitation Hospital for three years.
Since 1980, Roberto has been unable to work. It is his evidence he still has problems with his vision, his balance and headaches. Roberto received compensation for the injuries he had sustained in the accident.
It is Roberto's evidence that of the proceeds of the payout for his injuries he gave his father about $40,000[3] and he invested the remaining funds into real property. However, it appears the sum that Roberto gave to his father may have been less than $40,000. In a will executed by Giovanni on 19 June 2013, it is stated that $30,000 was to be paid to Roberto, 'in recognition of his financial assistance to me when he paid off the balance of my mortgage'.[4]
[3] Trial ts page 121.
[4] Exhibit 5.
Giovanni and Enrica looked after Roberto after he left hospital and he lived with them until he married at the age of 30 (in 1990). When Roberto married, he and his wife moved into one of his properties which was only one street away from his parent's home and next door to Nadia.
Nadia was always very close to her father throughout her childhood and into adulthood. They spent a lot of time together and she helped him when she could financially, including gifting him a car valued at $8,000 in 2002.
Nevia too was close to Giovanni and Enrica. She saw both of them almost every day and assisted them with cooking and cleaning and in turn they often helped her look after her three children.
Sometime before Enrica died, she was diagnosed with cancer. Nevia looked after her two days a week when she became ill and cleaned for her. When Enrica became too ill to look after Giovanni, she took care of him and ensured that he had meals to eat.
In about 2000, Nevia came to know Graziella. Sometime between 2000 and 2010, Nevia introduced Graziella to Enrica and Giovanni. In July 2003, Nevia's husband, Antonio, became a godfather to one of Graziella's sons.
On the day that Enrica died, Nadia's husband, Luciano, had a heart attack. At the same time, Nadia was recovering from a bout of depression and had only just returned to work after 18 months. As a result, Nadia did not see Giovanni very often after Enrica died.
It is Roberto's evidence that after Enrica died that Giovanni became very depressed and remained very depressed until he died.
About a month after Enrica died Nevia suggested to Giovanni that he should rent out his house in Queens Park and build a granny flat at the back of her house. Giovanni declined her offer and told her that he needed a woman in his life.
Several months after Enrica died, Nadia asked Giovanni if she could have her mother's pot plants as her mother had told her that she could take them when she died. Giovanni told her she could not have them. Nadia later found out that Giovanni had given the pot plants away.
At about this time Giovanni told Nadia that he had met a woman online who lived in Italy. Nadia told Giovanni that he should be careful as there were a lot of online scams targeting lonely people. She also told him that he was very vulnerable and it was 'perhaps a bit too soon' for him to begin a new relationship so soon after her mother had passed away. She suggested to him that it would be a good idea if he could wait a bit longer before rushing into anything new.
After this conversation, every time Nadia invited Giovanni to her house for dinner or lunch or a chat he made excuses that he was too busy or too tired to come to her house.
About three months after Enrica died, Giovanni told Nevia that he had met a woman online who lived in Italy. Nevia told him that she did not approve and Giovanni was unhappy with her response.
On 4 December 2012, Nadia's granddaughter was born. Nadia saw Giovanni later that day at the Carousel Shopping Centre in Cannington and she offered to take him into the hospital to meet his new great granddaughter or if he preferred to take him to her son Fabio's house once Fabio's wife came home from the hospital (with the baby). Giovanni told her that he would call her in about a week's time to organise a visit. However, Giovanni did not call Nadia and she did not have any further contact with him.
After Enrica died, Graziella began to spend a considerable amount of time visiting Giovanni. Graziella spoke to him almost every day on the telephone and asked him how he was going. He told her that he felt lonely and upset because his wife died and Nadia, Nevia and Claudio did not see him or contact him. He also told her that they were upset with him after he told them that he would like a lady for companionship.
Graziella began to see Giovanni at least five times a week. Her evidence is that she assisted him with shopping, cooking, washing, cleaning his home and taking him to appointments. She also organised birthday celebrations for him and claims that after Enrica died that Giovanni spent every Christmas and Easter with her, except for the times he was in Melbourne.
Graziella does not have parents in Australia. Her evidence is that Giovanni would often refer to her as his daughter when he spoke to others, and on at least one occasion referred to her as his 'angel daughter'.
In 2013, Giovanni told Graziella that he had met a lady on the internet named Mena Monte who lived in Melbourne. He also told her that his relationship with Claudio and Nevia began to deteriorate further when he told them about Mena and that he thought that they did not like that he was looking for a partner.
In or about late 2013 or 2014, and again in 2015, Giovanni went to Melbourne on each occasion for three or four months to stay with Mena.
It is Graziella's evidence that whilst Giovanni was in Melbourne, she spoke to him every day on the telephone and on his return to Perth and on each occasion Giovanni telephoned Graziella as soon he arrived at the airport.
In mid-2014, Giovanni returned to Perth with Mena and they both lived at Giovanni's house in Queens Park. Mena stayed in Perth until sometime in December 2014. It is Nevia's evidence that Giovanni and Mena would often visit Nevia's home and during one of those visits they both told her that they had become close to Graziella and saw her frequently. In early December 2014, Mena and Giovanni returned to Melbourne.
Nevia, however, continued to be close to Giovanni up until about a year before he died. Nevia's evidence is that, except for the periods of time when he was in Melbourne up until at least the middle of 2015, he would come to her house for lunch and dinner every day. After Mena moved to Perth in 2014 and began living with Giovanni in Queens Park, it is Nevia's evidence that her close contact with Giovanni continued as he came to her house for coffee every evening after dinner.
On 6 April 2015, Nevia's daughter, Monica, died not long before her 35th birthday leaving her daughter, Isabella Armstrong, who was 3½ years old. At the time Monica died she and Isabella lived with Nevia and Antonio. Nevia's second daughter, Susie, who was 43 years old at the time Monica died also lived with Nevia and Antonio. When Monica died, Susie took parental control of Isabella and they both continued to live with Nevia and Antonio. At about that time, Nevia ceased to work to assist Susie in looking after Isabella as Susie worked full-time.
After Giovanni returned to Melbourne in 2015 to be with Mena, he became ill in about mid-June 2015, and was hospitalised. As a result, Roberto flew to Melbourne and Giovanni returned to Perth with him.
When Giovanni returned to Perth in the middle of 2015 (with Roberto), he moved back into his house in Queens Park. It is Graziella's evidence that when he returned from Melbourne after being hospitalised that he did not have many clothes because he had left them in Melbourne. Graziella says she visited him on the day that he returned to Perth and bought some clothes and other items. After his return they continued to talk on the telephone every day.
On 27 September 2015, it was Isabella's christening. By that time, Giovanni was completely estranged from Nadia and Claudio. Both Nadia and Claudio told Nevia that they would not attend the christening if Giovanni was invited. Nevia told Giovanni that Nadia and Claudio had said they would not come if he was invited and she told Giovanni that she could not invite him to the christening. Giovanni said words to Nevia to the effect that, 'he was fine with this and that [she] could celebrate the christening with him another day'.
However, after the christening, Nevia did not hear from Giovanni again and did not speak to him before he died. She made many attempts to contact him but he did not respond.
In about December 2015, Giovanni told Graziella that he was very depressed and lonely. She told him that he could not stay by himself and that he should move to her house. Giovanni then went to stay with Graziella for about four months.
It is Graziella's evidence that Giovanni was very happy when he stayed with her and her children and that she enjoyed his company. It is also her evidence that Giovanni did not pay her any rent or for anything whilst he stayed with her. However, not long before he died in 2016 he gave her a relatively large sum of money after he sold his house.
Sometime in early 2016, Giovanni decided to sell his home in Queens Park. He moved from Graziella's house back to the house in Queens Park in or about March 2016 to prepare his house for sale. Graziella helped by gardening and spent a week cleaning the house and throwing out all of the rubbish. During this period of time Roberto collected from the Queens Park house some crystal glass that had belonged to Enrica, and some kitchen items.
By April 2016, Mena returned to Perth and married Giovanni on 4 June 2016. Mena was at that time approximately 79 years of age. Graziella assisted Giovanni to arrange the wedding. Nevia, Nadia, Roberto or Claudio did not attend. Sometime after Mena came back to Perth, Giovanni and Mena rented a house next door to Graziella's house in Balga.[5]
[5] Exhibit 9; it appears at least by 14 July 2016 that Giovanni was making payments of rent of $700 a fortnight from his Commonwealth Bank streamline account.
Roberto had only met Graziella a few times before Giovanni rented the house next to Graziella's house.
Roberto continued to visit his father after he moved to Balga. It is Roberto's evidence that he would see his father at least once or twice a week and that sometimes Giovanni would telephone him and ask him to come and mow the lawn. Although Roberto would do so, he did not carry out the task immediately as he would wait until he was well enough.
Giovanni sold his house and received the proceeds of the settlement of the sale, in the amount of $390,291.00, into his bank account on 14 September 2016.[6]
[6] Exhibit 9.
It is Graziella's evidence that she continued to look after Giovanni when he moved next door and she also provided assistance to Mena. She visited them before she went to work in the morning when Giovanni had breakfast. She made sure he had his tablets. She would also see him every day for lunch. After lunch she would clean the kitchen and she cooked dinner for them three to four times a week. Once a week she would thoroughly clean Giovanni and Mena's house. It is Graziella's evidence that she was not paid for this work.
However, there is no evidence before the court that before Giovanni died he was incapacitated in any way.
It also appears that he had no difficulty administering his affairs. It appears from his bank statements that he operated his bank account through the internet, and by making withdrawals of cash at the bank and at ATMs.
When Graziella gave evidence she claimed that Giovanni only operated his bank account by transferring funds through the internet and that he did not make any cash withdrawals from his bank account. This evidence appears to be given by her to bolster her evidence that Giovanni transferred an amount of $10,000 into her bank account for her to make payments to another or others.[7] Graziella's evidence on this point is not supported by the matters recorded in Giovanni's bank statements. It appears from those records that from time to time he accessed an ATM to make withdrawals, and attended a bank branch on at least two occasions to withdraw a sum of cash from his bank account after he received the proceeds of the sale of his house into his bank account.[8]
[7] Graziella informed the court that she would not disclose in open court to whom the payment or payments were to be made or for what purpose.
[8] Exhibit 9.
On 15 September 2016, Giovanni withdrew $1,000.00 from his bank account at the Mirrabooka branch of the Commonwealth Bank.[9] On 18 September 2016, he made an internet transfer of $10,000.00 to Graziella's ANZ cheque account.[10] Graziella's bank statement for this transaction records the transfer as, 'from Giovanni Bei present'.[11] On 20 September 2016, Giovanni transferred $39,500 to Roberto's, Westpac eSaver account.[12] Roberto's bank statement for this transaction records the transfer as, 'Deposit Giovanni Bei Present'.[13]
[9] Exhibit 9.
[10] Exhibit 9; Exhibit A, Tab 29.
[11] Exhibit A, Tab 29.
[12] Exhibit 9; Exhibit 14.
[13] Exhibit 14.
On 20 September 2016, Mena deposited $10,000 from her bank account into Graziella's bank account.[14]
[14] Trial ts page 86; Exhibit A, Tab 29, page 164.
On 21 September 2016, Giovanni withdrew $25,015.00 in cash from his bank account at the Mirrabooka branch of the Commonwealth Bank.[15] It appears that he used this cash as a part payment to purchase a second-hand but relatively new Toyota Kluger. It is Graziella's evidence that she and Roberto were with Giovanni when he paid for the car and she saw him produce $25,000 in cash. The purchase price of the vehicle was $28,000. It is Graziella's evidence that Giovanni used $25,000 cash from the sale of his house and $3,000 was credited to the sale from the trade-in of his old car.
[15] Exhibit 9.
On 3 October 2016, Giovanni transferred a further amount of $10,000 to Graziella's bank account. Graziella's bank statement for this transaction records the transfer as, 'From Giovanni Bei Arrear'.[16]
[16] Exhibit A, Tab 29.
It was Graziella's birthday on 6 October 2016.
On about 22 October 2016, Graziella organised a joint birthday party for Giovanni and her youngest son. She invited Roberto to attend, but he did not do so. She did not invite Nevia or Nadia because she was not in contact with them.
At about 10.00 am on 25 October 2016, Mena called Graziella to tell her that Giovanni was in hospital, and she thought he had had a heart attack. Graziella went to the hospital and telephoned Roberto. Roberto telephoned the hospital and was told Giovanni was in surgery having a stent inserted. Roberto telephoned the hospital again later that evening and spoke to Giovanni. The next morning Graziella telephoned Roberto and asked him to take Mena to the hospital. Roberto collected Mena and drove to the hospital. When they arrived they could not go into Giovanni's room as there were several doctors surrounding him and it appeared that Giovanni had had a heart attack. The doctors inserted a pacemaker and he was transferred to intensive care. However, Giovanni died a short time later that day.
Roberto attempted to engage Graziella in organising a funeral for Giovanni without success. Graziella organised the funeral with Mena. Roberto was unable to find out the date of the funeral until he went to see the executor, Mr Nguyen, and was told by Mr Nguyen that the funeral was to take place on that day. Roberto contacted Nevia, who contacted Nadia and the three of them went to the funeral. However, because of the late notice, Nadia and Nevia arrived at the funeral after it had started.
3.2 The questions for determination in the applications for further provision and the relevant principles
Nadia and Nevia each apply for orders for adequate provision for their proper maintenance, support or advancement in life, pursuant to s 6 and s 7(1)(c) of the Family Provision Act 1972 (WA) (the Act).
At the hearing of the applications, Graziella raised a jurisdictional issue as to whether Nevia is a child of Giovanni.
With the exception of Nevia, all of the children raised by Giovanni and Enrica were born after Giovanni and Enrica married. Nevia was born two years and eight months before Giovanni and Enrica married.
The issues to be determined are:
(a)whether Nevia is a child of Giovanni so as to be a person entitled to make a claim under s 7(1)(c) of the Act;
(b)whether the disposition of Giovanni's estate by his will was not such as to make adequate provision for Nadia and Nevia (if Nevia is found to be a child of Giovanni) for their proper maintenance or support in life; and
(b)if the answer to (b) is yes, what would be adequate provision for the proper maintenance or support of Nadia and Nevia?
Part of the evidence relied upon by Nevia to prove paternity turns upon proof of the state of the law in Italy when Nevia was born in 1952 and when her mother married Giovanni in 1955, and the legal effect of a notation made on her Deed of Birth on 24 February 1955. In these proceedings, Graziella challenged the admissibility of evidence given by a legal practitioner who practices in Italy in inheritance law. In determining whether this evidence should be accepted, the court must first determine whether the legal practitioner who gave evidence, on behalf of Nevia, is properly qualified as an expert and whether her evidence should be accepted.
4.0 Nevia's standing to make a claim for provision - Is Nevia a child of Giovanni?
4.1 Paternity - child of a deceased - the standard of proof
Section 7(1)(c) of the Act provides that an application for provision out of a deceased's estate may be made under the Act by 'a child of the deceased living at the date of death of the deceased'. A 'child' is defined in s 4 to include an illegitimate child.
In these proceedings, a question arises as to what standard of proof is required to establish reasonable satisfaction when the court is called upon to determine whether paternity has been recognised by a deceased during their lifetime.
Pursuant to s 4(4), the relationship between a parent and a child shall be recognised only if parentage is admitted by or established against the parent in the parent's lifetime. Section 4(2) requires that 'a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction[17] of the Court'. There are however, very few decisions of this court that have considered the standard and degree of proof required by this provision.
[17] My emphasis.
In G v H, paternity was in issue in respect of an application for maintenance of a child under the Family Law Act 1975 (Cth).[18] Division 7 of the Family Law Act provided for a number of presumptions arising from marriage, registration of birth, and cohabitation. Each of the presumptions were rebuttable by proof on the balance of probabilities. In considering the standard of proof required to rebut the presumption, the issue of paternity was found by the court in G v H to be a serious issue or matter.[19] However, the majority in G v H found that a description of that kind does not carry with it any notion that the higher standard of proof in civil matters, expounded in Briginshaw v Briginshaw[20] is to be applied in determining paternity. In particular, Deane, Dawson and Gaudron JJ expressed the following view:[21]
It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that '[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'. Thus, if there is an issue of 'importance and gravity', to use the words of the trial judge, due regard must be had to its important and grave nature.
Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided. Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Brigingshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. … [I]t is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child's rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing.
[18] G v H [1994] HCA 48; (1994) 181 CLR 387.
[19] G v H [1994] HCA 48; (1994) 181 CLR 387, 391 (Brennan & McHugh JJ), 399 (Deane, Dawson & Gaudron JJ).
[20] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[21] G v H [1994] HCA 48; (1994) 181 CLR 387, 399 ‑ 400. (footnotes omitted)
G v H has not been considered in any decision of the court involving s 4(4) of the Act. In any event, the legislative and factual context of G v H could be said to be distinguishable, as that matter concerned the proof of paternity during the lifetime of a person who was claimed to be the biological father and there was evidence before the court that DNA testing was available to provide proof of paternity.
In 2004, in The Public Trustee v Gulvin, Master Sanderson applied a strict test for establishing legitimacy, by finding that what was required was a high standard of proof.[22] This test had been rejected by Murray J nine years before.
[22] The Public Trustee v Gulvin [2004] WASC 140.
In 1995, Murray J in M v H[23] observed that the standard of proof of establishing paternity under the Act had traditionally been accepted as being very high and equating with the criminal standard of proof beyond a reasonable doubt. His Honour rejected that view, and after referring to the observations of Dixon J in Briginshaw v Briginshaw and to the statutory formula in s 4(2) of the Act observed:[24]
That is a formula which, in my opinion, would require and permit the degree of certainty necessary to be achieved in the mind of the court to vary according to the seriousness and the potential consequences of the fact alleged…
In my opinion, in the context of this legislation and the circumstances of the present case, I may be reasonably satisfied that P is the illegitimate child of G if I think that is probably the case, upon the basis of clear and cogent proofs which carry my mind to the conclusion with some reasonable degree of certainty. There is no need, I think, to be more precise about it than that. I take the view that while clear proof is required, the standard should not be set unduly high because in the context of this legislation it is, after all, a claimant for an award who seeks to prove his illegitimacy so that he may benefit by a provision out of the estate of the deceased, given that P may otherwise satisfy the statutory criteria.
[23] M v H (Unreported, WASC, BC9506595).
[24] M v H (Unreported, WASC, BC9506595) 11.
It appears that in 2011, Simmonds J in The Public Trustee as Administrator of the Estate of Jeffrey Stephen Alau v The Public Trustee of Queensland as Administrator of the Estate of Ellen Padal Pearson[25] did not refer to the 1995 decision of Murray J in M v H and declined to apply the observations of the Master in The Public Trustee v Gulvin, but did not formulate a different test.
[25] The Public Trustee as Administrator of the Estate of Jeffrey Stephen Alau v The Public Trustee of Queensland as Administrator of the Estate of Ellen Padal Pearson [2011] WASC 321 [41].
In 2004 Master Sanderson subsequently departed from his view in The Public Trustee v Gulvin in Sweeney v Castle.[26]
In that case, I was dealing with s 4(2) of the Family Provision Act 1972 (WA). That section says a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the court.
Counsel submitted the authorities do not support the phrase 'reasonable satisfaction' as comprising 'a quite stringent evidentiary requirement'. Counsel referred to the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, 361 ‑ 362 (per Dixon J).
It seems to me counsel's point is well made. What is required is 'reasonable satisfaction'. In particular, counsel relied upon the following passage in the judgment of Dixon J:
'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal (362).'
Second, there is no definition in the Family Provision Act as to what is meant by 'established'. Counsel for the first, second and fifth defendants referred to the Oxford English Dictionary definition of 'established': 'Achieve permanent acceptance or recognition for'. He submitted that had not been achieved in this case.
[26] Sweeney v Castle [2014] WASC 266 [24] ‑ [27].
Notwithstanding that M v H was decided by Murray J in 1995, the decision of Murray J was not cited by Master Sanderson in Sweeney v Castle.
The full passage revealing the reasoning of Dixon J in Briginshaw v Briginshaw is worth repeating as it is clear that his Honour gave express consideration to the statutory test of the Marriage Act 1928 (Vic) which provided upon the petition for dissolution of marriage it shall be the duty of the court to satisfy itself so far as it reasonably can, as to the facts alleged:[27]
[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
[27] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362.
In this matter, for the reasons that follow, I do not find it necessary to resolve the issue of whether paternity of Nevia should be determined by applying the Briginshaw v Briginshaw test. This is because on the facts of this matter the Briginshaw v Briginshaw test is met, that is, there is sufficiently clear and cogent evidence that Giovanni admitted parentage of Nevia during his lifetime, so that I may be reasonably satisfied that Nevia is the child of Giovanni.
However, if it was necessary to determine the point, I would have found that by applying the statutory formula in s 4(2) to establish a fact of paternity, an applicant does have to achieve the higher civil standard applied in Briginshaw v Briginshaw. This is because the statutory formula reflects the Briginshaw v Briginshaw test whereby, pursuant to s 4(2), a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the court, and s 4(3) empowers the court to be satisfied of the existence of any ground or fact, or as to any other matter, if the court is reasonably satisfied of the existence of that ground or fact or as to that other matter. When this formula is considered in the context that the consequence of a finding of paternity invokes the jurisdiction of the court to disturb the provisions of a person's will (if adequate provision has not been made for the child); it must be the case that, as Murray J found in M v H, clear and cogent proof must be found to establish paternity.
However, this point was not comprehensively canvassed by the parties in this matter. Nor is it necessary for the point to be decided, because for the reason I have given, there is sufficiently strong evidence of proof of paternity of Nevia to satisfy the Briginshaw v Briginshaw test.
4.2 The evidence of Nevia's paternity
4.2.1 Relevant principles that apply to expert evidence to prove foreign law
To prove the law of Italy at the material times, evidence was called, on behalf of Nevia, from a lawyer practising in Italy.
What constitutes the law of another jurisdiction is a question of fact. There has never been any doubt that a judge or practitioner in the jurisdiction whose law is in question is properly qualified to prove foreign law.[28] However, the evidence of the legal practitioner may be rejected if he or she has no practical experience in the area of law sought to be proved.[29]
[28] Heydon JD, Cross on Evidence (12th ed, 2020) [41035].
[29] Heydon JD, Cross on Evidence (12th ed, 2020) [41035].
J D Heydon, in the 12th edition of Cross on Evidence, summarised the following conditions for admissibility of expert opinion evidence as follows. These are, first, it must be demonstrated that there is a field of specialised knowledge. Secondly, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. Thirdly, it must be demonstrated that the opinion proffered is wholly or substantially based on the witness' expert knowledge. Fourthly, the expert must identify the assumptions of primary facts on which the opinion is offered. Fifthly, the opinion is not admissible unless evidence has been, or will be, admitted, whether from an expert or from some other source, which is capable of supporting findings of primary fact (the basis rule). Sixthly, there must be a demonstration that the facts on which the opinion is based form a proper foundation for it. Seventhly, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached.[30]
4.2.2 The matters stated on Nevia's Deed of Birth translated by an accredited professional interpreter/translator
[30] Heydon JD, Cross on Evidence (12th ed, 2020) [29045]; applying Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [85].
Nevia was born to Enrica prior to her marriage to Giovanni. Nevia's Deed of Birth records not only the details of her birth, but also contains a record of relevant facts noted by public officials.
Nevia's Deed of Birth (translated from Italian to English) records:
(a)Nevia's family name is Mariani;
(b)that 'Nevia Mariani was [legitimised] as daughter by Giovanni Bei and Enrica Mariani as a result of their marriage celebrated in Rome on 12/02/1955 and Registered with No 183 Part 2 Series A3'. This notation is recorded as being made at 'Rome, 24/02/1955' and 'Signed by the Civil Registry Officer'; and
(c)Nevia lost her Italian Citizenship following acquisition of Australian Naturalisation as per Deed No 92 part 2 Series A of the Registers of Citizenships of the year 1974. This notation is recorded as being made at 'Rome, 03/10/1974' and 'Signed by the Civil Registry Officer'.
On the English translation of the Deed of Birth, next to the heading, 'Father', it is stated by the translator that, 'The identity of the father is non mentioned on the actual Italian document'.
Following production of the original of the Deed of Birth, Graziella did not object to the admissibility of this document. A copy of, but not the original of, a Summary Extract of the Deed of Birth issued by the Registry Officer of the Municipality of Rome on 26 November 2002 was also sought to be tendered into evidence on behalf of Nevia. As the original of the Summary Extract was not produced, I have not had regard to this document and have not admitted it into evidence.
Counsel on behalf of Graziella raised a number of objections to the evidence to be given by the Italian lawyer, Ms Talò, and the admissibility of the opinions stated within her written report. Some of these objections related to technical matters that fell away following argument such as documents referred to that were not attached to her report.
One objection was that there was no evidence that Ms Talò practiced in the area of inheritance. However, after production of Ms Talò's curriculum vitae[31] this objection was not pursued.
[31] Exhibit 10.
The main objection to the admissibility of evidence to be given by Ms Talò was an argument that the opinions stated by her in the report assumed that the natural parents of Nevia married. Part of the argument was that the Deed of Birth did not provide any evidence that Giovanni was the natural father of Nevia.
The second objection to Ms Talò's evidence arose from the first point and that was it was argued that there was no reference in the report to the specific provision or provisions of the Civil Code of Italian law that applied when Nevia was born and when Enrica and Giovanni married.
After hearing argument on these points and after having read the report by Ms Talò and heard her oral evidence, I am of the opinion that Ms Talò's evidence and report is admissible and should be accepted as cogent and reliable evidence of an admission of paternity made by Giovanni in Rome before a Civil Registry Officer on 24 February 1955.
4.2.3 The evidence given by an Italian lawyer
Maria Clelia Talò is an Italian solicitor who practices in Bari in Puglia, in Italy. She obtained an Italian law degree in June 2005 and a further two‑year specialist law degree in 2007 focusing on intellectual property protection and damages liability. She also spent three years between February 2008 and December 2010 as a PhD student studying civil law and new technologies, internet provider's liability, and intellectual property and copyright. Since March 2011, she has been employed as an associate lawyer practising in international litigation for civil legal disputes, out-of-court settlements, real estate, inheritance, medical malpractice, debt collection and foreclosure proceedings and bankruptcy.[32]
[32] Exhibit 10.
Ms Talò is employed by an international law practice, De Tullio Law Firm. Ms Talò prepared in writing legal advice about the meaning and legal effects of Italian law of the notations made on Nevia's Deed of Birth and the Summary Extract of the Deed of Birth. In her legal opinion she sets out what the law was in Italy as to paternity and legitimacy when Nevia was born and when her mother, Enrica, and Giovanni married and what the law is in respect of these matters in Italy as at the time of hearing of the applications.
In her written report, Ms Talò addressed the following questions:[33]
(1)The system of birth certificates in Italy (how are they issued, which department issues them, how does a person obtain a copy of their birth certificate, etc).
(2)The legal effect (status) in Italy of a person being born 'illegitimately'.
(3)The legal effect in Italy of the phrase, 'legittimato quale figlia' in Nevia's Deed of Birth, with specific reference to the statutory provisions which address the meaning of this phrase and any court judgments where this phrase has been considered.
(4)Based upon the Deed of Birth, what status Nevia would have in Italy regarding her relationship with Giovanni?
[33] Exhibit A, Tab 18, page 112.
Ms Talò supplemented her written report by giving oral evidence by affirmation by audio link from Italy. When giving oral evidence, Ms Talò stated that in providing a legal opinion about the effect of the notations made on Nevia's Deed of Birth, she had formed that opinion from reading the notations on the original document that were made in the Italian language, and had not relied upon the English translation.[34]
[34] Trial ts page 79.
Ms Talò's evidence in her written report and orally was as follows:
(1)Deeds of Birth (birth certificates) are public deeds issued in Italy only by public authorities (the Municipality Registry Office, Ufficio Anagrafe del Comune), upon request of the interested party, for the party to give evidence of their identity or other 'life facts'.
(2)Life facts are recorded in the relevant Registry upon request of the interested party or a public officer who have knowledge of the relevant facts (birth, marriage, death, etc). The citizens have the duty to request the record and update of the anagrafic information for themselves and people under their responsibility (for example, for their children). Ms Talò referred to Article 2 of Law 1228/54 which provides: 'It is mandatory for everyone to ask for himself and for the persons on whom he exercises the parental authority or guardianship, the registration in the Registry of the Municipality of habitual residing people [Anagrafe] and to declare to the same office the relevant facts mutation of personal positions, as per the law'. She also referred to Article 6 of Law 1228/54 which provides that life facts relevant for the law are generally recorded by the Public Officer of the municipality where the fact happened and then communicated and transcribed also with the Municipality where the interested party has their registered domicile (residenza).
(3)At the time when Nevia was born (1952), there was a discrepancy between the status of legitimate and illegitimate children. Illegitimate children could not claim an inheritance or sustain a claim toward the parent if they were born out of marriage. Illegitimate children at that time did not have the status of a child (figlio), or of the rights related to the status of a child, unless legitimated after their birth. At that time, the only way to legitimate a son or daughter born out of marriage and give him or her the status of child (figlio), which carried with it all the rights of a child, was for the parents to marry each other after the birth of the illegitimate son or daughter.
(4)This distinction does not exist anymore in the Italian Legal System by the force of Law 219/2012. In 2012, the Filiation Reform (Law 201/2012) modified the Italian Civil Code and now regards all people, not only people born after a certain date, as the child of a parent. Thus, the abolition of the distinction between legitimate and natural and illegitimate children has been retrospective, and is applicable to a parent‑child relationship already existing prior to the date of enforcement of Law 219/2012 (1 January 2013).
(5)The meaning of the phrase 'legittimato quale figlio' in the Deed of Birth, in English, means literally, 'legitimated as a child'. This means that an individual after a certain event (marriage of his and her natural parents) acquires the status of child of the parents.
(6)The notation made on Nevia's Deed of Birth (at Rome on 24 February 1955) records that after his marriage to Enrica, Giovanni voluntarily recognised Nevia as his own child by making a declaration before a public officer.[35]
[35] Trial ts pages 71 ‑ 72.
When giving oral evidence Ms Talò explained why she stated that the notation on Nevia's Deed of Birth legitimising her as a child as a result of marriage by her natural parents was that Italian law as at 1952 and 1955 was that a deed of birth could only be amended when a man following marriage made a declaration in the presence of a public registry officer that he was the father of the child named in the deed of birth.[36] Further that, in Italy, if a father had a child outside the marriage, the only way for a natural father[37] to recognise that child was to make a voluntary declaration following marriage that he was the natural father of the child.[38]
[36] Trial ts pages 68 ‑ 69.
[37] Ms Talò explained that the term natural father meant the biological father of a child, trial ts page 72.
[38] Trial ts page 71.
Ms Talò's oral evidence also was that in 1955 marriage alone was not sufficient for a father to recognise a child. There had to be a voluntary declaration to that effect after marriage. She also stated in her written report that:
(a)the phrase 'legittimata quale figlia' on Nevia's Deed of Birth means that Nevia, born out of a marriage, acquired the status of a legitimate child (and therefore has been 'legitimated as a child') through the marriage of her parents; and
(b)in force of this legitimation, Nevia acquired all the rights of any children born during the marriage. This effect was provided by the law (civil code) applicable at that time.
I was satisfied that Ms Talò's evidence of the relevant Italian law and the effect of the declaration made on 24 February 1955 satisfied the basis rule for her opinion that the notation made on Nevia's Deed of Birth on 24 February 1955 was a notation to the effect that Giovanni recognised Nevia as his child. This is because she explained the legal effect of the relevant civil code law of Italy in 1952 and 1955 by expressly referring to Article 2 of Law 1128/54 and Article 6 of Law 1128/54 which provides that that life facts are recorded by the public officer of the municipality where the fact happened, and it is mandatory for all persons who exercise parental authority to declare relevant facts before a public registry officer.
4.2.4 Other evidence given in the proceedings relevant to Nevia's paternity
It is Graziella's evidence that Giovanni told her that Nadia, Nevia and Claudio were not his biological children. In support of this evidence, Graziella produced a copy of Giovanni's Certificate of Australian Citizenship upon which it is recorded in an endorsement, dated 2 April 1972, Roberto's name, date and place of birth of being a child who had not attained the age of 16 years of whom the grantee (Giovanni) 'is the responsible parent'. This certificate, however, does not provide any evidence as to whether Nevia was the biological child of Giovanni, as at the date of the certificate Nevia was 19 years old (having been born on 15 May 1952).
Although Graziella's evidence about what she says that Giovanni told her about Nevia is admissible, pursuant to s 21A(2) of the Act, I do not accord this statement any weight pursuant to s 21A(8), for two reasons.
Firstly, it is clear from the evidence that prior to his death Giovanni was offended by Nevia's and Nadia's unenthusiastic response to his desire to find another partner relatively quickly after Enrica had died. It also seems that he was offended and chose to become completely estranged from Nevia because he was not invited to the christening of Nevia's granddaughter, Isabella. It appears from the wills that he made on 19 June 2013[39], 22 February 2015[40] and 22 August 2015[41] that Isabella was important to him. This is because in each of those wills Isabella was to be a substantial beneficiary. It is also notable that, in the wills made by Giovanni on 22 February 2015 and 22 August 2015, Nevia's husband, Antonio, was also named as a substantial beneficiary.
[39] Exhibit 5.
[40] Exhibit 6.
[41] Exhibit 7.
Secondly, for reasons that follow, I have not found Graziella to be an entirely truthful witness.
There is, however, other evidence upon which it can be inferred that Giovanni did during his lifetime recognise parentage of Nevia. In each of his wills made on 19 June 2013, 22 February 2015 and 22 August 2015, he describes Isabella as his great granddaughter, and Isabella's mother (Nevia's daughter), Monica, as his granddaughter. In his wills dated 22 February 2015 and 22 August 2015, he also describes Nevia's daughter Susie (sometimes also referred to as Susan) as his granddaughter.
4.2.5 Conclusion - Nevia is a child of Giovanni
I am satisfied that there is sufficiently clear and cogent evidence before the court to satisfy me that Giovanni admitted the parentage of Nevia during his lifetime. I have made this finding by having regard to:
(a)the law of Italy as at 1952 and 1955 that a biological father of a child born to a woman to whom he was not married, could only, by the subsequent marriage to the biological mother of that child, be recognised in law as the father of that child by making a declaration recognising the child following the marriage;
(b)the evidence contained in the endorsement on Nevia's Deed of Birth when interpreted by regard to the law of Italy as at 1952 and 1955 is to be understood as evidence that Giovanni attended before a public officer in Rome on 24 February 1955 and declared that he had married the mother of his child, Nevia; and
(c)the evidence that he had raised Nevia as his child, together with his other children, and until approximately one year before he died he had a very close relationship with Nevia, and had described her husband, her daughters and her granddaughter in testamentary deeds, as his son-in-law, granddaughters and great granddaughter.
5.0 The first stage - The jurisdictional question - in what circumstances will it be found that the will of a deceased has made inadequate provision for an applicant?
The terms of s 6(1) of the Act give rise to two issues (which are to be dealt with in two stages) in determining each of the applications.
The first stage requires the court to decide as a question of fact (notwithstanding that it involves a value judgment) whether the applicant has been left without adequate provision from the estate of the deceased for their proper maintenance, support, education or advancement in life. This question is a 'jurisdictional question'. An affirmative answer to the question invokes the court's power to make an order.[42]
[42] Lemon v Mead [2017] WASCA 215 [50] ‑ [52] (Buss P); Dean v Collins [No 2] [2015] WASCA 151 [24] (Chaney J; Martin CJ & Buss JA agreeing); Daniels v Hall [2014] WASC 152 [127] (EM Heenan J); Kitson v Franks [2001] WASCA 134 [6] (Malcolm CJ), [34] ‑ [38] (Parker J; Kennedy J agreeing); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [56] (Gummow & Hayne JJ); Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 - 209 (Mason CJ, Deane & McHugh JJ).
This stage is to be determined as at the date of death of the deceased, having regard to all of the material facts that existed at the date of death, whether the deceased was aware of them or not, including all material eventualities that might reasonably have been foreseen by a deceased who knew of the facts.[43] It does not involve an exercise of discretion.
[43] Lemon v Mead [2017] WASCA 215 [54] (Buss P).
Unless the answer to the first question is yes, there is no jurisdiction to make an order by considering the second question.
In Lemon v Mead, Buss P explained the task of the court when considering the first stage:[44]
The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ), 515 ‑ 516 (Webb J), 526 ‑ 528 (Kitto J); Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 ‑ 148 (Gibbs J); White (437) (Barwick CJ), (441) (Mason J), (448 ‑ 449) (Aickin J); Goodman (498 - 499) (Gibbs J).
In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen (508). Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight' (508). See also White (441) (Mason J).
[44] Lemon v Mead [2017] WASCA 215 [54] ‑ [55].
When determining the jurisdictional question (namely, whether adequate provision has been made for the proper maintenance, support, education or advancement in life of a claimant), what is 'adequate' is to be assessed by reference to, inter alia, the size of the estate, the need and moral claim of the claimant or claimants, and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator.[45]
[45] Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 [53] (Steytler P) applying Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [9] (McLure JA); Butcher v Craig [2010] WASCA 92 [12] (Pullin & Newnes JJA & Murphy J); see also, Waddingham v Burke [2015] WASC 65 [63] ‑ [68] (Mitchell J).
In Devereaux‑Warnes v Hall [No 3], Buss JA explained:[46]
[46] Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [74] ‑ [78] (Pullin JA agreed).
The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman per Gibbs J at 496 ‑ 497; Hunter v Hunter (1987) 8 NSWLR 573 per Kirby P at 575; Singer per Mason CJ, Deane and McHugh JJ at 209 ‑ 210.
Plainly, the totality of that relationship would include:
(a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b)any contributions by the claimant to building up the deceased's estate; and
(c)the conduct of the claimant towards the deceased and of the deceased towards the claimant.
See Coates per Dixon CJ at 510; Hughes per Gibbs J at 147; Goodman per Gibbs J at 497.
Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 per Kirby P at 28, per Sheller JA at 42.
'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards. See Bosch at 476 ‑ 479; Worladge per Williams and Fullagar JJ at 11, per Kitto J at 15 ‑ 18; White per Stephen J at 440, per Mason J at 441 ‑ 445, per Wilson J at 457; Goodman per Gibbs J at 497, 502; Singer per Mason CJ, Deane and McHugh JJ at 211, per Gaudron J at 227.
The capacity of a court to make 'adequate' provision for the 'proper' maintenance, etc, of the claimant may be constrained by practical considerations such as the size and nature of the deceased's estate, and competition from other persons having competing claims upon the deceased's bounty, and their relative urgency. See McCosker v McCosker (1957) 97 CLR 566 per Dixon CJ and Williams J at 571 ‑ 572; Singer per Gaudron J at 227; Barns v Barns (2003) 214 CLR 169 per Gleeson CJ at 174 [4].
What constitutes 'adequate' and 'proper' provision is relative. In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ pointed out:[47]
The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.
[47] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).
Maintenance, support or advancement require an assessment of a standard of living and anticipated future needs of a claimant. Justice Pritchard in Devenish v Devenish explained:[48]
The term 'maintenance' in s 6(1) of the Act refers to a provision for the supply of the necessaries of life, although it also extends to provision over and above a mere sufficiency of means upon which to live: Vigolo v Bostin [115] (Callinan & Heydon JJ), cf Kitson v Franks [44] (Parker J). It may also imply a continuity of a pre-existing state of affairs: Vigolo v Bostin [115] (Callinan & Heydon JJ). 'Support', too, may imply provision beyond bare need: Vigolo v Bostin [115] (Callinan & Heydon JJ). In contrast, provision to secure or promote 'advancement' will ordinarily be provision beyond the necessities of life, and may extend to a provision which would enable a potential beneficiary to improve his or her prospects in life: Vigolo v Bostin [115] (Callinan & Heydon JJ). (citations omitted)
[48] Devenish v Devenish [2011] WASC 129 [70].
The criteria for assessment of these elements is well‑established.
The principles to be applied with respect to claims by adult children derive from the moral obligation, or community expectation, of a parent in respect of their adult child.[49]
[49] Braun v Australian Executor Trustees Ltd [2014] WASC 210 [11].
President Kirby in Permanent Trustee Co Ltd v Fraser referred to observations made by Virginia Grainer[50] in a published submission to the Law Commission of New Zealand, 'Is Family Protection a Question of Moral Duty?' in which Ms Grainer said:[51]
The court is required to establish the content of the duties of 'a just but not a loving' testator [Allardice, 973]. This formulation denies that love plays any part in the creation of this duty. Instead the duty is characterised as being based on justice. Testators can be forced to act justly but not lovingly.
[50] Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, 29 ‑ 30.
[51] 'Is Family Protection a Question of Moral Duty?' (1994) 24 Victorian University Wellington Law Review 141, 147 ‑ 148.
Where an adult child falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.[52]
[52] Taylor v Farrugia [2009] NSWSC 801 [58].
There is no need for an applicant adult child to show some special need or some special claim.[53]
[53] McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, 545; Bondelmonte v Blanckensee [1989] WAR 305 and Hawkins v Prestage (1989) 1 WAR 37, 45 (Nicholson J).
An adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration.[54]
[54] Macgregor v Macgregor [2003] WASC 169 [179] - [182]; Crossman v Riedel [2004] ACTSC 127 [49].
Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant.[55] In addition, if the applicant is unable to earn, or has a limited means of earning an income, this could give rise to an increased call on the estate of the deceased.[56]
[55] Marks v Marks [2003] WASCA 297 [43].
[56] Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 [17].
In Vigolo v Bostin, Gleeson CJ said that family provision legislation:[57]
[57] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [12] - [15]. (footnotes omitted)
[W]as not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based.
Similarly, when courts came to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives. Why is this so? The answer, again, lies in concepts of moral obligation.
This Court has also relied upon a dominant legislative purpose of enforcing moral duties as a reason for refusing to give effect to an attempt to contract out of making an application.
Perhaps the most frequently cited statement of basic principle underlying this legislation is that of Salmond J in In re Allen; Allen v Manchester:
'The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances'.
5.1 Nevia and Nadia's financial circumstances as at the day Giovanni died and as at the time of the hearing of the applications
5.1.1 Nevia's financial circumstances
Nevia ceased working in 1980 when she had her third child. She re-entered the paid workforce in 1992 as a supermarket checkout operator. She remained in retail employment until 2015 when she retired, aged 63 (just after her daughter, Monica, died).
As at the date of Giovanni's death, Nevia was aged 64 and not in receipt of any income. Antonio was employed and earning $61,255.92 net per annum ($5,104.66 a month). They had $3,500 in the bank and owned a house (their home) valued by a certified practising valuer, Mr C B O'Reilly, at $560,000 (as at 1 June 2018).[58] They had a mortgage of $355,000, leaving them with equity of $205,000. They owned a motor vehicle, a boat and a caravan valued at a total of $53,000. Nevia had $39,000 in superannuation and Antonio $110,000. They also had $30,000 in household furniture and electrical goods.
[58] Exhibit A, Tab 7, page 23.
When Giovanni died, Nevia and Antonio's joint assets totalled approximately $380,500, of which Nevia's share was $154,750.[59] However, their monthly outgoings exceeded their income. The total of their joint expenses per month was $6,230.46. To make up the monthly deficit of approximately $1,125.80, Nevia was drawing down on her superannuation.
[59] Nevia's share is less because Nevia had only $39,000 in superannuation and Antonio had $110,000 in superannuation.
As at the date of the hearing of the applications, both Nevia and Antonio had recently began to receive the aged pension of $711.00 a fortnight each (being a total of $1,422 a fortnight) (or being $3,081 a month). Their home has decreased in value since 2016. It was valued at $540,000 by Mr C B O'Reilly (as at 12 June 2020), but they have reduced their mortgage to $271,000[60] which gives them $269,000 equity in their home. Nevia and Antonio paid down the mortgage by reducing Nevia's superannuation to nil and using part of a payment of $39,000 made to Antonio as compensation for a motor vehicle accident. The balance of the payout ($20,000) has been invested in a bank account. The vehicle they owned in 2016 was written off. In its place they purchased a $10,000 Corolla which was paid for in part by $5,000 which was given to Nevia by their daughter, Susie, and the balance was paid by the insurance company. They still own a boat and caravan valued at $35,000. Antonio also has a vehicle, a Mitsubishi Triton, the value of which is unknown. However, in her affidavit she states that unless stated otherwise the value of their joint assets as at the date of swearing the affidavit is the same as the date of her father's death. On this basis it is inferred that the Triton is valued at $8,000. Antonio now has $138,000 in superannuation.
[60] Trial ts page 29; Exhibit A, Tab 11.
As at the date of trial, the total value of Nevia and Antonio's joint net assets have increased to approximately $510,000, of which Nevia's share is $186,000.[61] However, it is clear that Nevia's and Antonio's combined expenses continue to well exceed their income. It is noted that whilst Nevia's and Antonio's monthly expenses are said to amount to $6,230.46 and of that amount $2,019.33 are monthly mortgage repayments, Nevia and Antonio have consistently paid a higher rate of monthly payments than the interest that has been accruing on their mortgage. On 15 January 2020, the balance of their mortgage was $280,025.21 which they reduced to $271,997.58 by making fortnightly payments of $932.98 (being approximately $2,021 a month). In this period the loan attracted withdrawals of interest that when averaged were approximately $650 a month. However, even if Nevia and Antonio were to reduce their mortgage payments to interest only, their joint monthly expenses would be reduced from $6,230.46 to $4,859.46, leaving them with a monthly cash flow deficit of $1,778.46.
5.1.2 Nadia's financial circumstances
[61] Nevia's share is less because she now has no superannuation and Antonio has $138,000 in superannuation.
Nadia left school at age 13. At the time Giovanni died she was 59 years old. She worked in low paid retail jobs during the first three decades of her adult life, whilst also caring for her three sons.
Since 2006, Nadia has worked as an administration officer for a government department, with a break of 18 months due to depression in 2011 and 2012.
Nadia's husband, Luciano, worked as a spray painter until 2012. Following a heart attack that year, he has worked part-time as a warehouse/paint colour technician. It is Nadia's evidence that until 2012 they jointly earnt a sufficient income to cover their outgoings.
At the time Giovanni died, Nadia and Luciano had a combined annual income (from their employment) of $101,206.56 (being $8,433.88 a month). They jointly own two properties; one of which is their home and is located next door to Nevia's home. It was valued at $560,000 by Mr C B O'Reilly (as at 1 June 2018). At that time, they had a mortgage of $169,000, leaving them with equity of $391,000. They also owned an investment property which was valued at $440,000 by Mr C B O'Reilly (as at 1 June 2018). The property was mortgaged and the amount outstanding at the time of death was $362,324, leaving them with an equity of $77,676. The investment property was rented for $268 a week.
At the time of Giovanni's death, Nadia had $3,500, and Luciano had $300 in their bank accounts. Nadia had $110,000 and Luciano had $84,000 in superannuation. They also owned two vehicles which were collectively valued at $23,000 and they owned $30,000 of household furniture and electrical goods.
At the date Giovanni died, the total value of their joint assets, taking into account the mortgages and assets, but not a credit card debit, was $719,476, of which Nadia's share was $377,838.00.
The total of their outgoings per month which included both mortgages was an amount of $9,821.50 which meant that they too had expenses that exceeded their income (by $1,387.62 a month).
The only changes to Nadia's financial circumstances since Giovanni died are that:
(a)her monthly salary has increased to $4,661.97;
(b)the rental property is now rented out for $360 a week. However, the rent only continues to cover the interest only payments on the loan;
(c)their home and their investment property have decreased in value. Their home is now valued at $540,000 (as at 12 June 2020) and their investment property is valued at $400,000 by Mr C B O'Reilly (as at 16 June 2020);
(d)their mortgage on their house has increased as they refinanced to pay a $50,000 credit card debt which Nadia had at the time Giovanni died, but Nadia no longer has a credit card debt, so their outstanding debts have remained the same (being a joint liability for both properties of $531,324); and
(e)Luciano has drawn down some of his superannuation to make up their cash flow deficit of $1,387.62 a month. (Nadia's superannuation balance remains the same).
The total net value of Nadia and Luciano's joint assets has now reduced to approximately $699,476, of which Nadia's share is $367,838.[62] Because Luciano has been unable to work full-time since Enrica died in 2012, Nadia and Luciano have had an ongoing cash flow deficit each month.
I do not accept that the estrangement between Nevia and Giovanni was Nevia's fault. As counsel for the plaintiffs point out, it appears clear that Giovanni liked being the centre of attention and it appears that when he did not receive that from his daughters he turned to Graziella.
I also accept the evidence of both Nadia and Nevia that they both tried to end the estrangement with Giovanni to no avail. However, it is clear that by at least 2015, Nadia had accepted the estrangement and was slighted by Giovanni's rejection of her attempts to maintain the relationship.
It is argued on behalf of the plaintiffs, that in determining the jurisdictional issue Graziella's entitlement to the estate is irrelevant, as it is not open to her to claim that she has a moral claim. However, this contention is not correct at law. Graziella cannot put forward an argument that she has a moral claim under the Act, as she is not an eligible claimant within the meaning of s 7 of the Act.[72] She is, however, a beneficiary of the estate and as such it is open to Graziella to put forward an argument that her moral claim arises out of the fact that she formed a very close relationship with Giovanni after Enrica died in 2012 and she rendered services to Giovanni in the nature of cooking, cleaning and companionship.
[72] Devereaux v Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [98] (Buss JA).
In Devereaux v Warnes v Hall [No 3], Buss JA remarked a moral claim of a beneficiary may arise independently of the Act, from the totality of the relationship between a beneficiary and a testator and contemporary accepted community standards.[73] McLure JA and Pullin JA both observed that persons who have a legitimate claim upon the bounty of a testator include persons entitled to claim under the Act as well as testamentary beneficiaries who, although not entitled to claim under the Act, have a moral claim upon the bounty of the testator.[74]
[73] Devereaux v Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [109].
[74] Devereaux v Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [10] (McLure JA) and [24] (Pullin JA).
I accept that Graziella has established that she has a moral claim to the estate. However, for the reasons that follow, I do not accept that her moral claim to the estate is as strong as Roberto's, Nevia's or Nadia's. This assessment is not a factor that I have taken into account in determining the jurisdictional issue as it is not necessary, in order to satisfy the jurisdictional question, that an applicant demonstrates that her or his needs are greater than the named beneficiaries under the will.[75]
[75] Dean v Collins[No 2] [2015] WASCA 151 [26] (Chaney J, Martin CJ & Buss JA agreeing).
I also accept that Roberto has a moral claim on the estate of Giovanni that arises out of, not only his status as a beneficiary, but as an eligible claimant under s 7 of the Act. He too provided significant services to Giovanni by way of occasional lawn mowing and companionship and he contributed to Giovanni's estate by paying off Giovanni's mortgage.
It is conceded, on behalf of the plaintiffs, that when Giovanni died in 2016, that Roberto, like Nadia and Nevia, were each in a position where they would approach retirement with debt and without provision for the vicissitudes of life.
6.0 The second stage - The assessment and exercise of discretion - What orders for adequate provision (if any) can be made in favour of an adult applicant where the estate is small?
In determining whether the discretion of the court should be exercised in favour of the plaintiffs and in making an assessment of adequate provision, the court is required to consider:
(a)firstly, the general principles that apply to all applications for family provision that have met the jurisdictional test;
(b)secondly, the principles that apply to claims by adult children;
(c)thirdly, whether, if any, discount should be made for the fact that both the plaintiffs were estranged from their father at the time of his death; and
(d)fourthly, the limitations on the assessment where the estate is small.
In Lemon v Mead, Buss P considered the general principles to be considered by the court at the second stage (in the event that the court is satisfied that the jurisdictional question is met):[76]
At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. See Coates (509) (Dixon CJ); White (441) (Mason J); Goodman (499) (Gibbs J).
In Bosch v Perpetual Trustee Co Ltd [1938] AC 463, Lord Romer (delivering the advice of the Privy Council) observed that the discretionary power given to the court at the second stage 'must always be one of great difficulty and delicacy' and 'must always be one largely of guess-work, especially in a case … which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty' (483).
The discretionary power conferred by the Act at the second stage is to interfere with a deceased's dispositions when he or she has left a claimant without adequate provision for his or her proper maintenance, etc. The court is empowered to order such provision from the deceased's estate as the court thinks fit, but the court is not empowered to award more than what is 'adequate' provision for the claimant's 'proper' maintenance, etc. See Coates (509) (Dixon CJ); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 134 (Fullagar & Menzies JJ). Those propositions are derived from the statutory text. In particular, the words 'for that purpose' at the end of s 6(1) refer to the purpose identified earlier in s 6(1), namely ensuring that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc. The text and purpose of s 6(1) qualify the court's power at the second stage. The power is confined by the text and purpose to the making of orders which will ensure that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc.
In Blore, Fullagar and Menzies JJ said that where a testator has chosen to dispose of his or her estate according to his or her inclination, 'the generous treatment of a child who has no need of the testator's bounty [must not] be used to determine the provision to be made for a child whose need has been disregarded or overlooked' (134 ‑ 135). Their Honours added:
'The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family ‑ not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family (135).'
See also Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).
[76] Lemon v Mead [2017] WASCA 215 [56] ‑ [59].
When a claim is made by an adult child of a deceased, the specific principles the court is to consider are:[77]
[77] Wheat v Wisbey [2013] NSWSC 537 [128] (Hallen J); applied in Lysaght v Lysaght [2018] WASC 88 [55] (Tottle J).
In relation to a claim by an adult child, the following principles are useful to remember:
(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58].
(d)If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd‑Williams, at [86].
(e)There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.
(f)The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179] ‑ [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].
(g)The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.
(h)Although some may hold the view that equality between children requires that 'adequate provision' not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.
(i)There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542.
Justice Tottle recently set out the principles that apply in family provision cases which involve estrangement in Lysaght v Lysaght:[78]
Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case. Acrimony or estrangement does not necessarily destroy the bonds of parental ties. The nature of the estrangement and the underlying reason for it is relevant to an application under the Act. In Palmer v Dolman, Ipp JA, after a review of the cases observed that:
'[T]he mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.'
There is no rule that, irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, the claimant is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
The court should accept, however, that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years'. This is even more so 'where that callousness is compounded by hostility'.
The fact that an applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships during those years, is a relevant consideration. Indeed, where an applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. The Act permits the court to consider the character and conduct of the applicant at the second stage of the process. Attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.
Finally, the comments of Sackville AJA in Foley v Ellis are apposite and bear repetition:
'[It should be observed that] care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time.'
[78] Lysaght v Lysaght [2018] WASC 88 [58] ‑ [62] (Tottle J) (footnotes omitted).
Being estranged from a testator, therefore, does not necessarily result in a reduction in a moral claim for provision from a parent's estate. However, where a claimant has completely cut themselves off from a testator for a number of years at a time when a relationship responsive to the needs of the testator prior to their death would have been of some assistance to the latter, such an estrangement may diminish, to a degree, the claimant's moral claim for provision out of the estate. Yet, the well‑known observations of Gibbs J in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, should necessarily be borne in mind:[79]
[A] son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances ‑ that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.
[79] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 ‑ 148.
Thus, the effect of an estrangement on a claim on the estate of the deceased is a matter for the court to consider when considering the character and conduct of the claimant, at the second stage of considering an application for provision.
Where an estate, such as this one, is very small it is appropriate to have regard to the observations of Ipp J in Goodchild v James,[80] where his Honour was called upon to consider a claim by an adult son on a small estate where the testator did not possess enough assets to satisfy all the claims on his bounty. In Goodchild v James,[81] Ipp J firstly had regard to remarks his Honour had made in Triplett v Triplett, where his Honour had observed:[82]
The case falls into the class described by Salmond J in Re Allen (Deceased); Allen v Manchester [1922] NZLR 218 at 221 as one:
' ... in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims. No question arises in such a case as to the general scope and limits of the duty of the testator to make provision for the maintenance of his widow and children, for his duty in these circumstances is merely to do the best that he can and to distribute his available resources with justice between his dependants in proportion to their deserts and necessities.'
The court is required to determine whether 'proper' maintenance has been provided and proper maintenance may in some circumstances be less than adequate maintenance for the testator may not have possessed enough assets to satisfy all the claims on his bounty. Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Re Harrison (Deceased);Thomson v Harrison [1962] NZLR 6 at 16.'
[80] Goodchild v James (1994) 13 WAR 229.
[81] Goodchild v James (1994) 13 WAR 229, 239 ‑ 240.
[82] Triplett v Triplett (Unreported, WASC, Library No 8146, 16 March 1990).
Ipp J then went on in Goodchild v James to observe that:[83]
I am also required to bear constantly in mind the often repeated admonition that it is not for the court to rewrite the will, although as was said by O'Bryan J in Re Hokin [1959] VR 711 at 711-712:
'.. every order that is made under this Act is treated, by the very terms of the Act itself, as though it were a codicil to the testator's will, and so the Court when it makes an order does, to the extent that it makes an order, re-write the will of the testator.'
[83] Goodchild v James (1994) 13 WAR 229, 240.
In Devereaux-Warnes v Hall [No 3], McLure JA also relevantly observed:[84]
[W]hen assessing what is adequate provision, at least at the discretionary stage, the decision‑maker must take into account and give weight to the existing rights of beneficiaries under the will in addition to any relevant need or moral claim. It is necessary to do more than pay lip service to the requirement that a court must limit its disturbance of a testator's will to that which is necessary to give effect to the purposes of the Act and to do no more: The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19.
[84] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [13].
Consequently, I must attempt to make adequate provision for the plaintiffs out of the available resources of the estate (limited though they are) in such a way that the broad principles underlying the disposition of the estate by Giovanni are followed as far as possible.
6.1 Exercise of the discretion to make orders for provision for the plaintiffs
The court's power and function under s 6(1) of the Act is to decide what is now appropriate so as to ensure for a plaintiff's adequate provision for his or her proper maintenance and support but no more.[85] In this matter there are insufficient assets in the estate to provide for adequate provision for the plaintiffs' proper maintenance, support or maintenance in life. Because of the size of the estate, if the court was to make such awards the amount to be awarded would be more than is available in the estate. However, the plaintiffs have collectively sought an award of 50% of the estate, which when quantified the amount would be approximately $85,000 to Nevia and $58,000 to Nadia. These amounts on their own cannot be characterised as a wholly adequate quantum for their proper maintenance, support or advancement in life.
[85] Re Buckland [1966] VR 404, 416; Lemon v Mead [2017] WASCA 215 [269] (Mitchell & Beech JJA).
However, the capacity of the court to make an adequate provision for the proper maintenance, etc of the plaintiffs must necessarily be constrained by the size of Giovanni's estate and the competition from Roberto and Graziella upon Giovanni's bounty, and the relative urgency of the claims made by Roberto and Graziella.[86]
[86] See the observations made by Buss P in Lemon v Mead [2017] WASCA 215 [66] and the cases cited therein.
It is argued, on behalf of Graziella, that her moral claim on the bounty of Giovanni is superior to the claims of the plaintiffs because she gave to Giovanni what he wanted and needed in his advancing years, and in turn, Giovanni bestowed a gift upon her by his will. It is also argued that her need for a home free of encumbrance as she ages cannot be met from her own resources because she is unable to work.
I do not accept that Graziella has a strong moral claim on Giovanni's estate when compared to the moral claims of Nevia, Nadia and Roberto. Whilst I agree that Graziella formed a very close relationship with Giovanni after Enrica died in 2012 and that she rendered significant services to Giovanni in the nature of cooking, cleaning and companionship, I do not accept evidence that she did not receive any reward for the services. To the contrary, Giovanni paid her $20,000 shortly before he died. Although, the first payment of $10,000 was described by Giovanni as a gift, the second payment of $10,000 was described as arrears, which by the term 'arrears' could be said to contemplate that Giovanni intended to pay to Graziella for monies owed.
Despite the fact that I am unable to determine with any certainty the value of Graziella's property in Balga, or her current financial circumstances, I accept that Graziella has a relatively substantial mortgage over her home, which may be difficult for Graziella to discharge prior to retirement. However, Nevia, Nadia and Roberto also have substantial mortgage commitments.
Whilst counsel for the plaintiffs made a very strong submission which I have accepted that Graziella's evidence about her financial circumstances should not be accepted, counsel did make a submission that in assessing whether each of the parties have an inability to satisfy their own financial requirements from their own resources, that each of the parties to the proceedings were on an equal footing. But for this concession, I would have found that there was insufficient evidence before the court to make any reliable finding about Graziella's current financial circumstances.
Counsel for the plaintiffs also put a submission that Nevia's claim for provision is more urgent then Nadia's, and that in assessing what provision should be made to the plaintiffs, the court ought to have regard to the fact that Roberto has already received from Giovanni an amount of $39,500 and Graziella an amount of $20,000.
Although Giovanni executed his will on 16 September 2016, which was the day after the proceeds of the sale of his house were deposited into his bank account, and deposited the first amount of $10,000 into Graziella's account two days after he executed his will and the amount of $39,500 into Roberto's account four days after he executed his will, the provisions of the Act do not enable gifts made in the lifetime of a deceased to be accounted for in making an order for adequate provision to an applicant. These amounts, however, can be taken into account, and have been taken into account in determining the jurisdictional question when considering the financial circumstances of Roberto and Graziella at the time Giovanni died.
I agree that Nevia's claim for adequate provision is more urgent than Nadia's and I accept that both Nevia and Nadia could not meet their financial commitments from their own resources at the time Giovanni died and currently cannot do so.
Having regard to the size of the estate, and the competing claims to the estate by Roberto and Graziella as beneficiaries and that Giovanni intended that Roberto and Graziella should be treated equally under the will, I am of the opinion that their entitlement under the will should be reduced to 25% of the value of the estate each. In dividing the estate, it is my view that the value of the Toyota Kluger purchased by Giovanni shortly before his death should be assessed at the current value of the vehicle which the parties agree should be valued at $14,900. I am also of the opinion that if Roberto wishes to retain this vehicle, that when the estate is divided this amount should be deducted from his share of the estate.
7.0 Conclusion
For the reasons I have given, orders should be made requiring Roberto as the executor to make the payments equivalent to the following percentages from the residue of Giovanni's estate:
(a)to Nadia 20%;
(b)to Nevia 30%;
(c)to Graziella 25%; and
(d)to himself 25% (as a beneficiary).
I will hear the parties further as to the precise form of orders that should be made, including orders as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith6 OCTOBER 2020
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