Barber v Broomfield

[2012] VCC 400

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
FAMILY PROPERTY DIVISION

Case No. CI-10-05571

IN THE MATTER of Part IV of the Administration and Probate Act 1958
AND IN THE MATTER of the Estate of ANNIE MAUDE BARBER, deceased

GEORGE MAURICE BARBER	Plaintiff
v
ARTHUR JAMES BROOMFIELD ( and others as per the attached Schedule of Parties who are sued as the Executors of the Estate of the late ANNIE MAUDE BARBER)	Defendant

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2012
DATE OF JUDGMENT:	13 April 2012
CASE MAY BE CITED AS:	Barber v Broomfield & Ors
MEDIUM NEUTRAL CITATION:	[2012] VCC 400

REASONS FOR JUDGMENT

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SUBJECT: TESTATOR'S FAMILY MAINTENANCE

CATCHWORDS: claim by widower - second marriage - responsibility owed by the deceased - whether a small legacy and the right of residence adequate provision - prenuptial agreement - relevance as a consideration - legacy and right of residence inadequate provision
LEGISLATION: Administration and Probate Act 1958, s.91
CASES CITED: Singer v Berghouse (1994) 181 CLR 201; Gigliotti v Gigliotti [2002] VSC 279; McKenzie v Topp [2004] VSC 90 and Anderson v Teberonas [1990] VR 527
RULING: order that the will be amended to reflect a life interest in the real property of the deceased, and a right to the plaintiff to sell the real property to pay for or aquire alternative accommodation with the remainder at the date of his death to form the residue of the estate of the deceased 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Engelfield	HBH Legal
For the Defendant	Mr P Lithgow	Dwyer Robinson Pty Ltd

HIS HONOUR:

Introduction

1       Before the Court is an Originating Motion filed by the plaintiff on 2 December 2010 seeking adequate maintenance and support from the estate of the deceased, Annie Maude Barber, pursuant to Part IV of the Administration and Probate Act 1958 ("the Act").

2       Ms L Engelfield of Counsel appeared for the plaintiff. Mr P Lithgow of Counsel appeared for the defendant.

3       The following evidence was adduced at the trial:

·     The plaintiff gave evidence and was cross-examined.

·     Mr Broomfield gave evidence and was cross-examined.

·     Ms Shanahan gave evidence, but was not cross-examined.

·     Ms Matthews gave evidence, but was not cross-examined.

·     Ms Looker gave evidence and was cross-examined.

·     The plaintiff tendered his Court Book ("PCB") pages 6-71: Exhibit A[1]

[1]The solicitors for the plaintiff prepared a Court Book which contained the plaintiff and the defendants evidence. For convenience sake I will refer to the evidence in it as the plaintiff's Court Book

The Background Facts

4       George Maurice Barber married Annie Maude Smith on 28 September 2002. They met in 2000 when they were both in their sixties. It was about that time that they commenced living in a domestic relationship. After 10 years of marriage Annie died on 14 June 2010. She was 78 years of age at the time of her death. George is 79 years of age.

5       At the time George and Annie married, George had no assets to speak of. Annie, on the other hand, owned a property at 61 Bostock Street, Warrnambool, and had cash monies and cash investments.

6       Annie made a will dated 16 December 2005. Her will provided, among other things, a legacy to George of $10,000 and a limited right of residence of Bostock Street. The residue of her estate was left to her five children. Mr Lithgow submitted the dispositions in the will must be considered in the context of a pre-nuptial agreement executed by George and Annie on 20 September 2002.

7       The evidence adduced at the trial was not at all controversial. There was some evidence which suggested that the relationship between George and Annie was less than cordial and loving; that it was a relationship more of convenience with George allegedly contributing little to the relationship; that George was wasteful with Annie’s money; that George did not love or commit himself to Annie to the extent to which he deposed to those matters in his principal affidavit, and that George was a divisive influence getting in between Annie and her relationship with her children.[2]

[2]In particular, the affidavits of Ms Shanahan at PCB 47-49 and Mrs Looker at PCB 53-56

8       The foregoing are serious allegations. However, they were not pursued with any vigour by the defendant at the trial. Firstly, those allegations were not put to George during cross examination, nor were the allegations pressed by Mr Lithgow in his final address. Secondly, Mr Broomfield, an executor and the deceased’s brother, readily conceded that George in fact did commit himself to Annie in the manner described by George in his principal affidavit.

9       I accept George’s evidence that he was a loving and committed husband to Annie, and that his level of commitment is consistent with what he deposed to in his principal affidavit.[3]

[3]PCB 6-9

10      In the circumstances it is unnecessary to me to summarise the evidence in any significant detail. It is sufficient for me to record that from 2000 until the date when George and Annie married they lived in a domestic partnership at Bostock Street. After they married they continued to live at Bostock Street and treated it as their matrimonial home.

11      There is nothing to suggest that their relationship was other than cordial, harmonious and loving, and that George was a committed husband to Annie. They lived at Bostock Street as husband and wife until about 18 months before Annie died. Annie suffered serious ill-health and went into a state of dramatic decline. She progressively lost her sight. She became more and more physically debilitated and began to lose her physical independence, ultimately requiring the use of a wheelchair. During this period, and before Annie was admitted to a nursing home, George cared for her in all respects with the assistance of some outside help. After Annie was admitted to a nursing home George's commitment to her did not diminish.

12      The evidence of Mr Broomfield confirms the foregoing as does the evidence of Dr Philpott, general practitioner. Dr Philpott was the treating medical practitioner for Annie. He deposed to George being the constant carer for Annie in the last five years of her life including the period when Annie was admitted to a nursing home.[4]

[4]PCB 70-71

13      I have no hesitation in accepting the evidence of George in whole. I reject the evidence, summarised in paragraph 7 above. I am fortified in accepting George’s evidence in whole because of the evidence of Mr Broomfield and Dr Philpott, and because the allegations summarised in paragraph 7 were not pressed in any material way at any stage during the trial.

The Issues

14      The first issue which arises for my consideration is whether Annie made adequate provision for the maintenance and support of George.

15      The second issue is whether the prenuptial agreement executed by George and Annie is to be given significant weight. Mr Lithgow very properly conceded that the relevant authorities point to prenuptial agreements standing as a consideration to be weighed into account, but not something which can prevent my enquiry into whether adequate provision was made for George’s maintenance and support under Annie’s will.[5]

[5]Singer v Berghouse (1994) 181 CLR 201 at 203-205, and in particular, at 207, and Gigliotti v Gigliotti [2002] VSC 279 at paragraphs 8-12, and in particular at paragraph 12

Adequate Provision

16      It is trite law that Annie owed a responsibility to George to adequately provide for his maintenance and support. The discharge of that responsibility, in the context of a second marriage, is superior to the claims of others, such as children.[6] It is a responsibility to put a roof over the head of George and to provide him with a nest egg to permit him to be able to face the unforeseeable vicissitudes which lie ahead.

[6]McKenzie v Topp [2004] VSC 90 at paragraph 58

17      Mr Lithgow did not contest that Annie owed a responsibility to George nor that the law recognises that in a second marriage the surviving spouse has a superior claim to others, including children of the deceased. He submitted that Annie recognised that responsibility and adequately provided for the maintenance and support of George by providing him with a legacy of $10,000 and a roof over his head by giving him a right of residence of Bostock Street.

18      Furthermore, Mr Lithgow submitted that George and Annie made a clear and unequivocal demonstration that neither would make a claim against the others estate in the execution of the prenuptial agreement. It is clear that is what was intended by George and Annie when they executed the prenuptial agreement on 20 September 2002. On the death of one or the other the assets of each were to be preserved.

19      It is clear that a prenuptial agreement is admissible as a statement of a deceased in determining whether the deceased had made inadequate provision for the proper maintenance and support  of the person to whom the deceased owed a responsibility.[7] In Gigliotti v Gigliotti[8] Byrne J considered that the existence of a prenuptial agreement was something he should have regard to in the determination of the amount of provision. He referred to section 91(4)(p) of the Act, which provides that the Court must have regard to any other matter which the Court considers relevant.[9] It would appear that Byrne J considered the effect of the prenuptial agreement by rejecting the submission made on behalf of the widow to have a fee simple title to a house conveyed to her, and by directing that she have a life interest.[10]

[7]Singer v Berghouse (1994) 181 CLR 201 at 203-205, and in particular, at 207

[8][2002] VSC 279 at paragraphs 8-12

[9]Ibid at paragraph 12

[10]Ibid at paragraph 13

20      Ms Englefield made a sustained attack upon the prenuptial agreement in an attempt to persuade me that I should pay no regard to it at all. Firstly, she submitted that it was not a prenuptial agreement recognised under the provisions of the Family Law Act 1975. Secondly, George gave evidence that he is practically illiterate. He said that the prenuptial agreement was given to him and he was simply asked to sign it. He said he had no real knowledge of its contents.

21      I am not so concerned that the prenuptial agreement does not meet the requirements of the Family Law Act 1975 because it is not an agreement which the defendants seek to uphold as a binding agreement. So much is obvious from the concession made by Mr Lithgow. The emphasis placed upon the prenuptial agreement by the defendants is that it is evidence of Annie which is admissible in the sense that it was made admissible in Singer v Berghouse and in Gigliotti v Gigliotti.  I do not accept George’s evidence  that he was unaware of the contents of the prenuptial agreement.

22      The difficulty which a right of residence poses for George is that if he is overtaken by older age and requires admission to a nursing home then he will be taken to have ceased to live at Bostock Street "permanently" with the result that Bostock Street and its contents will form part of the residue of Annie's estate and will be distributed to her children. George will be left with a legacy and a pension, and nothing more to face one of the obvious foreseeable vicissitudes of life, the cost of nursing home care.

23 Ms Englefield did not expressly refer me to the particular matters which I must address in section 91(4)(e) - (p). However, she did so in the course of her general submissions. I propose to attack those particular matters in the same way.

24 The following are not controversial. George and Annie were husband and wife in a marriage of some 10 years. Annie owed an undoubted responsibility to George, and a responsibility to her children. The size of the estate is small. Essentially, it comprises Bostock Street valued at perhaps $200,000,[11] and share investments, a balance in the banking account and the value of a car and household goods.[12] George is 79 years of age. He appeared to be in reasonable health. George’s contribution to Annie's estate comprised his care and commitment to her over their ten-year marriage. There was no palpable attack upon the character or conduct of George save for the matters I referred to in paragraphs 7 and 8 above. I propose to follow the approach made by Byrne J in Gigliotti v Gigliotti and deal with the prenuptial agreement as a matter which is relevant to consider as the evidence of Annie in the manner I have already discussed.

[11]According to the infantry of assets and liabilities at PCB 19

[12]Bostock Street was the asset which George claimed. The other assets would be ignored to cover costs of the litigation

Conclusion

25      In the course of Ms Englefield's submissions I asked her whether it was within the contemplation of the case which she presented for George that he be permitted to sell Bostock Street and use it to fund other accommodation when necessary, and that at the time of his death it form the residue of the estate of Annie and be distributed to her children. Ms Englefield submitted that such a position would be unsatisfactory and would deprive George of the entitlement to deal with Bostock Street as his own estate. The purpose in the question was to follow the approach taken by Byrne J in Gigliotti v Gigliotti where he recognised that the deceased did not want to jeopardise the expectation of his children that they would in due course receive the fruits of his lifetime endeavours.[13] I am inclined to make a similar order.

[13][2002] VSC 279 at paragraph 12

26      The order I have in mind is to amend the will to provide that George be given a life interest in Bostock Street, that he be given the right to sell Bostock Street and to apply the net proceeds to the acquisition or payment of alternative accommodation, and that at the date of his death the remainder form the residue of Annie's estate and be distributed to her children accordingly. It seems to me that this achieves the very result sought by George, but pays due regard to the evidence of Annie through the prenuptial agreement. It should not lead to any difficulty in the identification of the residue because it is likely that the pension George receives will be expended on his day-to-day needs leaving no identifiable estate attributable to him, but in any event if there is an identifiable estate it is likely to be modest.

27      I do not accept that there is any persuasive evidence of a competing need in the beneficiaries under Annie's will. In the absence of such evidence I am not obliged to undertake an enquiry into the comparative moral claims of the beneficiaries.[14]

[14]Anderson v Teberonas [1990] VR 527 at 535-536

28      I propose to leave it to Counsel to draft the amendments to the will to reflect the orders I propose to make. I will also make an order that the costs of the plaintiff and the defendants be paid on a solicitor and client basis.

29      It is inevitable that I will need to be addressed by Counsel once the amendments to the will have been drafted, and what needs to be done in order to meet the cost of this proceeding, that is, whether there is some inevitability that Bostock Street needs to be sold.

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