Bartlett, Carrollyn v Balkin, Anthony Shane

[2009] VCC 1771

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL

FAMILY PROPERTY DIVISION

Case No. CI-08-04301

IN THE MATTER of Part IV of the Administration and Probate Act 1958 AND

IN THE MATTER of the Estate of MARGARET HARRIETT MUIR deceased

BETWEEN

CARROLLYN BARTLETT	Plaintiff
v
ANTHONY SHANE BALKIN	Defendant
(who was sued as the Executor of the Will of the above-named deceased)

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2009
DATE OF JUDGMENT:	6 November 2009
CASE MAY BE CITED AS:	Bartlett, Carrollyn v Balkin, Anthony Shane
MEDIUM NEUTRAL CITATION:	[2009] VCC 1771

REASONS FOR JUDGMENT

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Catchwords: TESTATOR'S FAMILY MAINTENANCE – application by a daughter of the deceased – no provision made by the deceased – small estate – whether any provision should be made: Administration and Probate Act 1958, section 91(1), (3) and (4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Dickenson	Whyte Just & Moore
For the Defendant	Mr G Baker	Shane Balkin & Associates
HIS HONOUR:

Introduction

1          Before the Court is a proceeding brought by Originating Motion filed 10 October 2008, by which the plaintiff seeks an order for provision for her maintenance and support out of the estate of the deceased.

2          Mr A Dickenson of counsel appeared for the plaintiff, and Mr G Baker of counsel appeared for the defendant.

3          The evidence adduced at trial was as follows:

•  The plaintiff gave evidence and was cross-examined;

•  Mrs Heather Mary Muir gave evidence and was cross-examined;

•  The plaintiff tendered affidavits sworn by her on:

ƒ	13 August 2009: Exhibit A
ƒ	16 October 2009: Exhibit B
ƒ	23 October 2009: Exhibit C

• The defendant tendered affidavits sworn by Mrs Heather Mary Muir on:

ƒ	20 August 2009: Exhibit 1
ƒ	23 October 2009: Exhibit 2
ƒ	26 October 2009: Exhibit 3

• The defendant also tendered an affidavit sworn by him on 26 October 2009: Exhibit 4.

The Background Facts

The Deceased's Estate

4          Mrs Carollynn Bartlett and Mrs Heather Mary Muir are sisters. They are the natural daughters of the deceased, Margaret Harriett Muir. The deceased died on 29 October 2007 leaving a Will dated 11 April 2002.

5          The estate of the deceased, at the time of her death, principally comprised a dwelling at 28 Moreland Avenue, Corio. She left the whole of her estate to Mrs Muir.

Mrs Bartlett

6          Mrs Bartlett was born on 14 November 1960. She is now forty-eight years of age. She is a married woman. Her husband, Mr Alan Bartlett, is also forty- eight years of age. Neither Mrs Bartlett nor her husband have any children born of their relationship. Alan Bartlett has four children of his previous relationship.

7          Mrs Bartlett is the eldest of four children. Her other siblings, apart from Mrs Muir, are two brothers who are forty-seven and thirty-two years of age respectively. Neither made a claim against the estate of the deceased.

8          Mrs Bartlett and her husband rent a property at 23 Spruhan Avenue, Norlane. The rent paid is $380 per fortnight. Mrs Bartlett is a part-time taxi driver by occupation. In the financial year ending 30 June 2008, she earned a taxable income of $17,418. In the financial year ending the 30 June 2009, her husband earned a taxable income of $38,734 of his trade as a printer.

9          Recently, Mrs Bartlett and her husband received a notice from the landlord to quit the property they rent. There is nothing in the evidence to suggest that they will not be able to find an alternative rental property.

10        Both Mrs Bartlett and her husband have other assets, comprising:

• Mrs Bartlett has an ING bank account with the balance as at 30 June 2009 of $3147.04.

• Mrs Bartlett has a Bendigo Bank account with a balance as at 21 June 2009 of $234.50.

• Mrs Bartlett has superannuation as at 31 December 2008 of $21,813.49.

• Her husband has superannuation as at 30 June 2008 of $107,047.87.

11        Mrs Bartlett has debts, comprising:

• A credit card debt as at 5 August 2009 of $8,320.29.

• A balance on a car loan as at 1 July 2009 of $702.42.

12        Mrs Bartlett suffers a number of health problems which she described as follows:

"I suffer from arthritis and macular degeneration. I have morbid obesity and hypertension. The macular degeneration will result in the loss of my sight. It is unclear how long I will be able to continue to drive taxis. The obesity can lead to kidney and liver problems and diabetes. As a result of the arthritis, I will need both my knees replaced in the future. The obesity may prevent me having this procedure. My health issues make it difficult to work however I am currently able to work as a taxi driver. It is unclear how long I will be able to continue to work."

13        In her affidavit sworn 23 October 2009, Mrs Bartlett exhibited a medical report of Dr Mahmood, general practitioner, dated 30 July 2009, in which he expressed the following opinion regarding her health problems:

"This is to certify that I am Dr Abbass Mahmood, a legally qualified Medical practitioner. I have been Mrs Bartlett's Family Doctor for many years now and I am familiar with her medical history. Mrs Bartlett suffers from the following conditions:

1 - Morbid Obesity

2 - Osteoarthritis both Knees

3 - Deep Vein Thrombosis leading to Pulmonary Embolism

Mrs Bartlett is at risk of disablement and invalidity from an early age. She is likely to require knee replacement surgery in the near future; also she is a high risk for cardiac and vascular events, i.e., Heart disease and Stroke.

As a consequence of medical conditions it is likely that Mrs Bartlett is going to be retired prematurely."

14        Mrs Bartlett said that her father died in January 2001. The deceased retired when she was fifty-five years of age and before her husband died. Her mother was ill at the time of her retirement, suffering from emphysema, heart palpitations, rheumatoid and osteo arthritis, diabetes and depression.

15        Mrs Bartlett said that she cared for the deceased at 28 Moreland Avenue, Corio. She was entitled to and received a carer's pension from Centrelink during the period that she cared for the deceased.

16        Mrs Bartlett's relationship with the deceased deteriorated from about October 2001. It was around that time that Mrs Bartlett met Alan Bartlett. She believes that it was jealousy on the part of the deceased which led to the deceased demanding that either Mrs Bartlett leave the deceased's home or discontinue her relationship with Alan Bartlett.

17        Mrs Bartlett chose to continue her relationship with Alan Bartlett. She left the deceased's home and lived elsewhere. She married Alan Bartlett in March 2003. The depth of the deterioration in their relationship was demonstrated by the deceased and Mrs Muir refusing to attend her wedding.

18        Mrs Bartlett said that she attempted to have a relationship with the deceased, but to no avail. On occasions when she said she visited the deceased she was met with a hostile reaction, and otherwise she said she was effectively cut out of the deceased's life.

Mrs Muir

19        Mrs Muir was born on 15 February 1967. She is now forty-two years of age. She married in 1989. She has a child who was born in 1991. She separated from her husband in December 1991 and obtained a divorce from him in 2000.

20        Mrs Muir was a school crossing supervisor, working 15 hours per fortnight. She followed that occupation for fourteen years until around the time when the deceased died. She found alternative work for three months in about July 2008. She has not worked since.

21        Mrs Muir disputes Mrs Bartlett's evidence that she cared for the deceased to the extent described by her. She paints a picture of Mrs Bartlett being far less of a dutiful daughter than portrayed by Mrs Bartlett, and essentially said that it was she who was largely responsible for the care of the deceased.

22        Mrs Muir said that the reason why the relationship between Mrs Bartlett and the deceased deteriorated was because Mrs Bartlett did not respect the deceased's privacy. She disturbed the deceased at night. She would arrive home and engage in bouts of drinking which the deceased did not condone because of the deceased's experience with her husband who was an alcoholic.

23        Mrs Muir said that the plaintiff drove past the deceased's home several times, but would never call in, but did on one occasion to inform the deceased that Uncle Harry had died. She referred to the fact that if Mrs Bartlett said she was unable to telephone the deceased it was because the deceased's landline had been disconnected. The deceased used a mobile phone.

24        Mrs Muir said that after Mrs Bartlett left the deceased’s home, thereafter she looked after the deceased until the deceased's death. She said that she was essentially the carer for both of her parents from about 1989. She said that Mrs Bartlett obtained a carer's payment of about $90 per fortnight which she gave to her.

25        At present Mrs Muir receives $453 per fortnight as a Newstart Allowance. She has been in receipt of that allowance since February 2007. She has no assets to speak of. She has a Volkswagen Kombi van worth about $1300; a superannuation benefit of $5,000, and negligible credit in a banking account with the Bendigo Bank.

26        Mrs Muir has debts, comprising:

• A GE credit loan debt of $3400.

• A Buyers Edge loan debt of $3300.

27        Mrs Muir also suffers health problems which she described as follows:

"I have been diagnosed with osteoarthritis eight years ago. I was put on anti-inflammatory medication for this but I am currently not receiving treatment. Instead I use home gym equipment to keep my weight down and to reduce my arthritis pain. I have also been diagnosed as suffering from depression and anxiety and am currently on medication Efexor for this. The combined effect of these conditions is that my employment prospects are very limited."

28        In her affidavit sworn 26 October 2009, Mrs Muir exhibited a medical report of Dr Fitzgerald, general practitioner, dated 1 December 2008, in which he expressed the following opinion regarding her health problems:

"This is to certify that Heather currently suffers with depression, for which she is receiving medication. Due to the depression she is currently unfit to work.

She has been diagnosed with osteoarthritis in the past and from that time was treated with anti-inflammatory medication. Since she has managed to lose a significant amount of weight, her arthritis pain have (sic) reduced significantly, and she is currently not having active treatment for this."

Findings of Fact

29        Both Mrs Bartlett and Mrs Muir devoted a fair amount of effort in describing their relationship with their grandparents. Mrs Bartlett described her relationship with her grandparents, and in particular, her grandmother, and the inheritance obtained by her parents of her grandmother's home which they subsequently sold in order to purchase 28 Moreland Avenue, Corio.

30        Whatever the relationship might have been between Mrs Bartlett and Mrs Muir and their grandparents is of no great consequence to the issues which I must determine in this proceeding.

31        Whether or not they were benevolent grandchildren who had a good and caring relationship with their grandparents or not, cannot create some advantage for either of them in this proceeding.

32        The relevant relationship around which this proceeding revolves is the relationship between the deceased and Mrs Bartlett and Mrs Muir.

33        Furthermore, there is an obvious conflict between the versions given by Mrs Bartlett and Mrs Muir regarding the extent to which they each cared for the deceased; the extent of the care given, and the reasons why Mrs Bartlett's relationship with the deceased deteriorated, and then the breakdown in Mrs Bartlett's relationship with the deceased, and whether Mrs Bartlett ignored the deceased or was excluded from her life.

34        I suspect that neither Mrs Bartlett nor Mrs Muir is capable of seeing eye to eye on very much any more. I suspect that this proceeding has deepened the divisions between them, and hence the yawning gap in their evidence relevant to their personal relationships with the deceased.

35        However, I find that it is more likely than not that Mrs Bartlett and Mrs Muir were close to their grandparents and their parents. There seems to be a thread of consistency in their evidence that they both were attentive to their grandparents and their parents, but perhaps to differing degrees.

36        I find that Mrs Bartlett did have a reasonable relationship with the deceased because she was living with the deceased until Mr Bartlett came on the scene. It is more than coincidence that Mr Bartlett’s arriving on the scene was contemporaneous with the relationship between Mrs Bartlett and the deceased deteriorating and ultimately breaking down.

37        I find that it is more likely than not that the deceased did not approve of Mrs Bartlett's relationship with Mr Bartlett, and that she was not prepared to continue with a relationship with Mrs Bartlett from that time.

38        I find it is more likely than not that Mrs Bartlett did not disregard the deceased. I accept her evidence that she did not feel welcome in the deceased’s home; however, there was the semblance of a desire on the part of Mrs Bartlett to have a relationship with the deceased because she dropped in to inform the deceased of the death of Uncle Harry.

39        I find that from the time of the breakdown of the relationship between Mrs Bartlett and the deceased, that Mrs Muir cared for the deceased.

40        In relation to the evidence adduced by both Mrs Bartlett and Mrs Muir regarding their ill-health, it is clear that Mrs Bartlett is suffering deteriorating health. Her evidence is supported by the opinion of Dr Mahmood, save to the extent that he makes no comment about Mrs Bartlett suffering from macular degeneration.

41        I observed two things about Mrs Bartlett when she gave evidence: Unhappily for her, she is grossly obese; and she wears thick glasses.

42        It is clear that Mrs Muir also suffers ill-health. Her principal ailment is depression. I observed one thing about Mrs Muir when she gave evidence: Her face reddened deeply; her breathing became very shallow and it was very apparent that she was emotionally overcome to the extent that she was incapable at one stage of giving evidence.

The Issues

43        The principal issue on which Mr Dickenson and Mr Baker addressed me was whether the deceased’s estate was a small estate, and as a consequence, whether I should interfere with the disposition made in the deceased's Will.

44 Mr Baker did not argue strenuously that the matters referred to in section 91 (4) of the Administration and Probate Act 1958 work against Mrs Bartlett so that no provision should be made to Mrs Bartlett.

45        Indeed, Mr Baker's helpful written outline of submissions was devoted almost exclusively to the issue of the estate of the deceased being a small estate.

46 Both Mr Dickenson and Mr Baker referred me to each of the matters set out in section 91(4) in the course of their addresses, but concentrated their submissions on whether the estate of the deceased was a small estate and whether it therefore should follow that I should not interfere with the disposition made in the deceased's Will.

The Legal Matrix

47        Mr Dickenson did not concede that the deceased’s estate was a small estate. He submitted that on the facts of this case that the sale of 28 Moreland Avenue, Corio would probably net at least $150,000 on sale, from which provision for Mrs Bartlett of 50 per cent would give her $75,000.

48        Mr Dickenson submitted that $75,000 was a very significant sum of money for both Mrs Bartlett and Mrs Muir in circumstances where neither had a house or assets of any significant value.

49 One of the matters which I must have regard to is section 91(4)(g) which specifically refers to:

"The size and nature of the estate of the deceased person and any
charges and liabilities to which the estate is subject."

50        I was referred to a number of authorities said to condescend to the issue of smaller estates and the disposition by a deceased of a property to one beneficiary where the estate was said to be a small estate.

51        In Gillies v Executors of the Will of Sitch (decd)[1] Gillard J, when dealing with section 91(4)(g), firstly observed that the estate was not large. The net assets amounted to $78,065.47. He later observed that on any view the estate was an extremely small one.[2]

[1] [2005] VSC 308

[2]             Paragraphs 75-78

52        Despite the observations made by Gillard J, he found that the deceased had failed to make adequate provision for the proper maintenance and support of his de facto wife and ordered that she receive a total of $50,000 and a half- share in a panel van.[3]

[3]             Paragraph 116

53        In Chapman v Hudson,[4] Young CJ made the following observation:

“I have, of course, been referred to the two-prong test in Singer v Berghouse (1994) 181 CLR 201. Looking at the first limb of the test, it seems to me that the testatrix who looked at her family's position may well have said, ‘Well if I had a little more money I would make provision for the plaintiff who has special needs, but if I do so it will mean I can make no provision for the rest of the children. I can, however, do the best by having a roof over two of their heads by doing what I have done in my will, so that whilst I regret this will not help the plaintiff, that's the way I think I should go’.”[5]

[4] [2006] NSWSC 373

[5]             Paragraph 34

54        Young CJ dealt with an estate comprising a house with an approximate value of $270,000. He refused to make provision for the plaintiff, saying that he appreciated that the plaintiff had a claim, but unfortunately the estate was just not big enough to support the plaintiff's claim.[6]

[6]             Paragraph 35

55        In Markovska v Kocevska[7] and in Peterson v Micevski,[8] provision for the plaintiff in each case was refused on the basis that the deceased in each case was entitled to consider making the disposition which they did to provide a home for the beneficiaries who, without each deceased making a disposition of that kind, would not have had a home to live in. In both proceedings reference was made to the size of the estate.[9]

[7] [2005] VSC 319, per Byrne J at paragraphs 26-27

[8] [2007] VSC 280, per Hansen J at paragraphs 158-159

[9]             In Markovska v Kocevska (supra) the value of the deceased's home was $335,000; and in Petersen v Micevski (supra) the value of the deceased time was $200,000

56        The thorny question raised by the submissions made by Mr Dickenson and Mr Baker is what is a "small estate"? I do not accept that one simply looks at the monetary value of the estate of the deceased and not interfere with the disposition made by the deceased just because it is a small estate.

57        It strikes me that the rationale which underwrites the authorities referred to is the intention of the deceased to benefit a beneficiary who does not have a house to live in; the beneficiary does not have any significant assets to speak of, including income, and has little or no prospect of obtaining a house or assets or income of significance.

Section 91(4)(e) - (p)

58 I will now turn to each of the considerations in section 91(4)(e) – (p) before finally considering these submissions made by Mr Dickenson and Mr Baker.

Paragraph (e) – any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship

59        Mrs Bartlett is the daughter of the deceased. I have made findings that she had a reasonable relationship with the deceased until she met Mr Bartlett, at which time her relationship with the deceased deteriorated and eventually broke down. The length of the relationship was lifelong. Had it not been for the deceased’s attitude to Mrs Bartlett at the time she met Mr Bartlett, then I find it would probably have continued at a reasonable level.

Paragraph (f) – any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate

60        The deceased had an undoubted obligation and a responsibility to Mrs Bartlett, as is the accepted norm of the obligation or responsibility which a parent owes to a child. Likewise, the deceased had the same obligation and responsibility to Mrs Muir.

Paragraph (g) – the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject

61        I have dealt with the size of the estate and the issues raised by both Mr Dickenson and Mr Baker.

Paragraph (h) – the financial resources (including earning capacity) and the financial needs of the applicant, or of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future

62        Neither Mrs Bartlett nor Mrs Muir has any significant financial resources. Neither owns a house. Mrs Bartlett's financial position is obviously better than Mrs Muir’s because she is presently capable of earning an income, whereas Mrs Muir is not earning an income.

63        Mrs Bartlett has the added advantage that her husband is in full employment, and both have superannuation upon which they can rely at a stage when it matures to their benefit.

Paragraph (j) – any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

64        Mrs Bartlett is forty-eight years of age. She is still relatively young. There is no evidence to suggest that she will not have a full life expectancy.

Paragraph (k) – any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased

65        Mrs Bartlett made a modest contribution to building up the estate of the deceased by making a contribution of $1500 as part of the renovation costs of the deceased’s home. Otherwise she says that she contributed towards household expenses of about $200 per week, and also $90 per fortnight as a carer's benefit. Whilst Mrs Muir contests that Mrs Bartlett made contributions of that kind, I find that she probably made some contributions from her wages during the time she was living with the deceased which was no doubt of assistance to the deceased in defraying the expenses of daily living while the two of them lived in the deceased's home.

Paragraph (l) – any benefits previously given by the deceased person to any applicant or to any beneficiary

66        The only benefit which the deceased provided Mrs Bartlett was permitting her to live in her home, however, that was offset by the contributions which Mrs Bartlett made towards household expenses.

Paragraph (m) – whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

67        The deceased was not maintaining either Mrs Bartlett or Mrs Muir.

Paragraph (n) – the liability of any other person to maintain the applicant

68        The only person with a liability to maintain the applicant is her husband. If that were to cease it would leave Mrs Bartlett in a relatively parlous financial situation.

Paragraph (o) – the character and conduct of the applicant or any other person

69        Neither Mr Dickenson nor Mr Baker submitted that there was any disentitling conduct on the part of the applicant.

Paragraph (p) – any other matter the Court considers relevant

70        Neither Mr Dickenson nor Mr Baker submitted that there are any other matters which are relevant.

Conclusion

71        It was inherent in the way in which the proceeding was conducted that there was no issue that the deceased had a responsibility to make provision out of her estate for Mrs Bartlett.

72        Furthermore, it was also inherent in the way in which that proceeding was conducted that it was open to me to find that the deceased was not a wise and just testator and was in breach of her moral duty to Mrs Bartlett.

73        I consider that the deceased most certainly had a responsibility to make provision out of her estate for Mrs Bartlett. In Blair v Blair,[10] Nettle JA said that in order to reason from the matters referred to in section 91(4)(e)-(p) that the testator failed to make adequate provision, it necessitates the application of a test or standard to the matters to be considered. He added, that test remains one of whether and if so what provision [the deceased] as a wise and just testator would have thought it her moral duty to make in the interests of [Mrs Bartlett].

[10] (2004) 10 VR 69

74        However, as Young CJ observed in Chapman v Hudson (supra), even though the claimant had a claim, it was the size of the estate which militated against making provision for the claimant.

75        I consider there is much force in the submission made by Mr Dickenson that for Mrs Bartlett to have a lump sum in her possession would be of enormous advantage to her given her health problems, and the fact that she does not own a home.

76        Of course, balanced against that is the position of Mrs Muir, who likewise suffers ill-health and does not own a home.

77        Mr Dickenson and Mr Baker estimated that the costs of the litigation on a solicitor-client basis approaches $60,000. Any provision for Mrs Bartlett out of the estate of the deceased will inevitably lead to the necessity to have 28 Moreland Avenue, Corio sold.

78        My distillation of what the authorities hold is that where there is a small estate, and where the beneficiary is in a parlous financial state when compared with the financial position of the claimant, then a court should seriously consider not interfering with the disposition in the will of a deceased.

79        That proposition is all right as far as it goes, but it cannot be the case that whenever there is a small estate that the disposition of the will of the deceased should not suffer interference in favour of a worthy claimant.

80        There can be little doubt that Mrs Bartlett and Mrs Muir are in poor health. There can also be little doubt that neither has any significant resources upon which they may call in the future, save that Mrs Bartlett is presently working, has a husband who is in full employment, and between her and her husband they have superannuation which they can call upon in their retirement.

81        Given Mrs Bartlett’s financial circumstances, I am disposed to order that provision be made for her out of the estate of the deceased.

82        However, I do not accept the submission made by Mr Dickenson, that after the legal costs and the costs of sale have been met, that the net remaining should be divided equally between Mrs Bartlett and Mrs Muir.

83        I consider that the deceased, behaving as a wise and just testatrix, should have recognized that she had a responsibility to Mrs Bartlett, but that the position of Mrs Muir is not as secure as that of Mrs Bartlett.

84        For that reason I consider that provision should be made for Mrs Bartlett to the extent of one-third of the net estate of the deceased.

85        I will hear the parties on the orders which will reflect the conclusions I have reached.

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