Briggs v Mantz - [2014] VSC 281

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2013 02482

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

-and -

IN THE MATTER of the will and estate of Olga Ada Briggs, deceased

Garry George Briggs	Plaintiff
v
Sharlene Mantz (who is sued as the executor of the will of the abovenamed deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22-23, 26 May 2014
DATE OF JUDGMENT:	22 August 2014
CASE MAY BE CITED AS:	Briggs v Mantz
MEDIUM NEUTRAL CITATION:	[2014] VSC 281	First Revision: 5/9/2014

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Testator’s Family Maintenance — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by adult son and four adult grandchildren — Estate divided equally between the son and four grandchildren — Estate comprised principally of deceased’s home — Claim by the son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Son sought further provision of the whole of the estate, alternatively, ninety per cent of the estate — Competing claims against the estate of the deceased — Son’s claim dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	Slater & Gordon
For the Defendant	Mr R Wells	McNab McNab & Starke

HER HONOUR:

Introduction

Olga Ada Briggs died on 2 April 2012, leaving a will dated 3 April 2000. Probate of her will was granted to her granddaughter, Sharlene Mantz on 8 August 2012. By originating motion filed 15 May 2013, Garry George Briggs (‘the plaintiff’), the only son of the deceased and Sharlene’s father, seeks further provision pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’). The time in which the plaintiff was entitled to bring the proceeding was extended by orders of Efthim AsJ dated 30 July 2013 made by consent, pursuant to s 99 of the Act.

The will and estate of the deceased

In her will, the deceased left her estate to her husband, Henry John Briggs (‘Mr Briggs’) and, in the event that he predeceased her, her estate is to be distributed to the plaintiff and his four children in equal shares. Mr Briggs died 13 September 2003, thereby predeceasing the deceased. The plaintiff’s four children are Darna (born on 14 December 1966), Dean (born 10 October 1968), Sharlene born (15 January 1970) and Kylee born (14 May 1974).

The inventory of assets and liabilities filed in the application for probate values the deceased’s estate at the date of death at $855,321.07. The estate comprised:

(a)a property at 356 Howe Parade, Port Melbourne, valued at $850,000;
(b)a bank account of $321.07; and
(c)household furniture, chattels and jewellery estimated at $5,000.

At trial, counsel for the parties agreed the value of the property was $800,000. They also agreed that, predominantly due to the legal costs of this proceeding (estimated at $100,000 for each side), irrespective of the result of this proceeding, the property must be sold.

In this proceeding, the plaintiff initially sought that further provision should be provided by him receiving the Howe Parade property. Given that the property will be sold to meet the legal costs of the proceeding, the plaintiff submitted that proper provision would be for the plaintiff to receive 90 per cent of the net residuary proceeds from the sale and 10 per cent to be divided equally between the four grandchildren, which was said by counsel for the plaintiff to be a ‘very generous legacy in the circumstances’.

The evidence
Family background

The deceased was born on 27 June 1921. She married her husband, Mr Briggs, in 1943. Mr Briggs worked on the wharves and retired when he was 65 years old.. The plaintiff is their only child, born on 3 March 1944. The deceased worked part time at some stage in South Melbourne hotel and at the South Melbourne market.

The plaintiff is now aged 70 years. He grew up in Port Melbourne, living with his parents at 45 Alfred Street, Port Melbourne. He attended primary school in Port Melbourne and then went to South Melbourne Technical School. He left school when he was 14 years old. The plaintiff was very close to his parents and described himself as a ‘spoilt kid’. His parents did everything for him. When he started working, he continued to live at home with his parents and did not pay any rent. He remained living at home with his parents until he married his wife, Freda, in 1965.

The plaintiff was a keen sportsman. He played 400 games with the Port Colts Football Club and subsequently coached the team for five years. He trained two nights a week and on the nights he was not training, he said he would ‘just … hang around’.

Freda said that whilst they were married, the plaintiff would come home after his work finished, would usually have a meal, watch television and then go out to see football mates. Dean recalled his father’s heavy involvement with the Port Colts, his father going to football training and playing football on the weekends.

The plaintiff’s working life

The plaintiff’s first job was as a tea boy in a factory in Bay Street, Port Melbourne. He then worked as a slaughterman at the South Melbourne abattoirs until his late forties. His work started early in the morning, between 6 and 7am, and finished when he completed his daily tally, usually around noon or 1pm. He also worked as a courier with TNT from 3pm until 7pm for two to four years. He was unable to be specific as to the exact number of years he worked at TNT, other than it was when he was living at 350 Howe Parade. The family moved to Howe Parade in 1976.

When the plaintiff finished working as a slaughterman, he then worked as a stevedore until the late 2000s and then as a labourer in the construction industry. He worked full time until 2012. Since the death of the deceased in 2012, the plaintiff has worked on a casual basis as a traffic controller on construction sites.

Mr Briggs purchases 43 Alfred Street, Port Melbourne

Before the plaintiff married in 1965, Mr Briggs purchased the property 43 Alfred Street for the plaintiff and his future wife to live. The property was next door to where Mr Briggs and the deceased lived. Mr Briggs renovated 43 Alfred Street, with some help from the plaintiff. Although he had no formal training as a tradesman, Mr Briggs was good at renovating houses. Two friends of Mr Briggs helped him with the work on the house. The plaintiff helped with lifting or anything else his father needed, but said he was not very good at being a carpenter. The plaintiff did not pay for the renovation of 43 Alfred Street.

The plaintiff’s marriage and the move to 43 Alfred Street

On 17 December 1965, the plaintiff married his wife, Freda. In the first twelve months of their marriage they lived with the plaintiff’s parents for the first few months and then with Freda’s parents in Port Melbourne. They did not pay rent while they lived with either of the parents. They moved to 43 Alfred Street when they had one child and Freda was pregnant with the second child. The plaintiff did not pay rent to his parents when they lived in 43 Alfred Street. The earliest recollections of Dean and Sharlene as children were living at Alfred Street with their grandparents next door to them. Sharlene said as a young child, she went from house to house and enjoyed the company of her grandparents.

Before they married, Freda worked looking after other people’s young children. The plaintiff thought that Freda continued with her work when their own children were young. Freda said when she started her family, she stopped working but returned to work part time work from 1979 onwards when her youngest, Kylee, was aged five. She worked full time from 1989 onwards. Dean thought that both his parents worked before the family moved to 350 Howe Parade in 1976, with his mother working as a kindergarten teacher’s assistant. After the family moved to 350 Howe Parade, his mother continued to work as a kindergarten teacher’s assistant. Sharlene said her mother started working outside the home in about 1979 once Kylee was of school age.

In 1968, Mr Briggs bought the plaintiff’s first car for him and the plaintiff chose a 1968 Holden Monaro. Initially, the plaintiff said he contributed to its purchase but subsequently agreed that his father probably paid for all of it.

The family move to 350 Howe Parade

In around 1976, the plaintiff and Freda purchased the property at 350 Howe Parade, Port Melbourne from the Ministry of Housing for the sum of $25,000. Freda said a deposit of $750 was payable, with the balance payable on terms. Mr Briggs paid the deposit for them. The plaintiff thought that he and Freda probably had the money to pay the deposit but also agreed that Mr Briggs helped him with buying the property and that his father could have done that for him. He also said he did not contribute towards the purchase of 350 Howe Parade. Mr Briggs did the work on the house, with the plaintiff helping him as needed, and a friend of Mr Briggs painted the house. The plaintiff did not contribute towards the renovation of 350 Howe Parade. 350 Howe Parade was a two bedroomed house. The plaintiff and Freda slept in one bedroom, with Kylee in a bed in the corner, and the three older three children slept in second bedroom.

In the same year that the plaintiff and Freda moved into 350 Howe Parade, the plaintiff’s parents purchased the property at 356 Howe Parade, which was three doors away. The house was in a poor shape and Mr Briggs renovated it with the plaintiff helping if needed. Mr Briggs and the deceased moved into the house when it had been renovated.

When Dean was a young teenager, Mr Briggs bought a caravan for Dean to use as his bedroom and then the three girls then slept in the second bedroom in the house. The plaintiff said Mr Briggs also arranged for an area to be fenced off around the caravan and paid for a concrete path between the caravan and the house.

Assistance to the family from the plaintiff’s parents

The plaintiff’s parents gave significant financial and other assistance to the plaintiff and his family. They loved the grandchildren and would do anything for them. They bought them clothing and gave them food and chocolates. The plaintiff said his parents did not help out with the cost of the education for the children. The plaintiff denied that he and Freda did not have enough money to raise their children properly or that he was reliant upon his parents for financial help. The plaintiff did not deny that his parents frequently provided financial assistance directly to Freda because she did not have enough money to pay the bills, although he did deny having any knowledge of such assistance.

Freda said before she went back to work in 1979, they could not manage financially because she did not receive a full pay packet from the plaintiff. The plaintiff would come home on pay day each week and ask her what bills needed to be paid and then hand her an amount of money and tell her to see how that went until the next week. Freda said she received financial assistance from Mr Briggs and the deceased. The deceased would see the bills to be paid and give her some money saying ‘I’ve won on the horses, here you are’. The deceased would also see the food that Freda was dishing up and say that she had food in her refrigerator and ask her if she wanted it. In cross-examination, Freda said she received financial help from Mr Briggs and the deceased from time to time and if she were a short of money they would help out.

Sharlene remembers her mother had to ask the deceased to help pay the family’s bills. Her mother would send her to the deceased to say that her mother did not have enough money to pay the gas, electricity or water bills and Sharlene would ask the deceased for money for the bills. The last time Sharlene recalled this occurring was when Sharlene was in her final year at school and aged 16 years. Sharlene also said that the deceased assisted her financially from time to time when she was an adult. The last time she asked her for help was in the late 1990s so she could pay the security deposit on a house that she and her husband wanted to rent.

The grandparents also paid for the various extracurricular activities of the four children when they were at school. Freda said she was not able to afford them herself because she did not have enough money from the plaintiff.

Sharlene said she did gymnastics, jazz dancing and tap dancing after school. Kylee also attended the dancing lessons with her. The deceased paid for those lessons and for their uniforms, tap shoes and anything else they needed. They had other activities at school, such as camps and excursions and they attended as many of those as they could, usually once a year. Sharlene went to a technical school that involved woodwork and metal sheet work and her grandparents paid for those things.

Sharlene said that when she was in Prep and Grade 1, the deceased walked the children to primary school three to four times a week. Either the plaintiff or one of her grandparents would walk the children home from school. This was because her mother was usually at home looking after Kylee. Occasionally, her grandfather drove them to school when it was raining or if he was on holidays. At least three days a week when they were at primary school, the deceased paid for their lunch orders at the local milkbar. Sharlene saw the deceased put the money in the brown paper bag with the lunch orders.

At some stage during the marriage, the plaintiff went to the Northern Territory for a couple of months to work. He said it was hard to get work and, when he did, he would send money home to Freda. Freda said that while the plaintiff was in the Northern Territory, she received $180 in the mail from him for the family’s support which was not enough to pay the bills. The plaintiff denied that he only sent $180 to Freda. While he was away, the car also broke down and its registration expired. The plaintiff told Freda to sell it and get whatever she could for it. Freda sold the car to the family across the road. The plaintiff then told the deceased to get the sale proceeds for the car from Freda and send it to him in the Northern Territory. Freda said she gave the money to the deceased.

The deceased’s relationship with her grandchildren

The plaintiff’s parents plainly loved the plaintiff and the four grandchildren. The plaintiff said the relationship between the plaintiff and his parents and his parents and his children was ‘always magic’. The plaintiff thought that was the reason that his parents moved close by in Howe Parade. The plaintiff said this ongoing and loving relationship with their grandchildren continued until his parents died. The plaintiff also said that Freda had a good relationship with his parents, but that it was not so good once Freda left the marriage in 1993. Kylee said the relationship between her parents and her grandparents was very happy.

Freda said she usually saw Mr Briggs and the deceased every day and it was like they were living with the family. If she ever wanted any help such as a meal, a child minded or taken somewhere, the grandparents were on hand for her.

Dean said his grandparents had a very significant involvement in his life and he was close to them. He was very fond of them and they were very fond of him and his three sisters. He described his relationship with his grandparents as a normal relationship: they saw the children regularly, would give them Christmas and birthday presents, he went to football matches with his grandfather regularly, usually to see the Port Melbourne Colts, went for walks to the beach with his grandparents to get mussels down at the pier, the deceased provided food and snacks for the family and he received the odd meal from the deceased. In cross-examination, he agreed that his grandparents would often provide meals for him.

Kylee said she had a very loving, caring and giving relationship with her grandparents and saw them every day, if she chose to. They bought gifts for the four grandchildren all the time and gave them money to go down to the shop. They also took the four of them into the city to shop and they would buy chocolates at Darrell Lea.

Sharlene described the relationships of the four children with their grandparents as a warm and loving relationship. Her grandparents were very fond and loving grandparents. They were very fond of the four grandchildren and of the plaintiff and Freda. They took the four grandchildren to the Royal Melbourne Zoo on many occasions, to the circus when it came to town, to the city shopping at Myers and Waltons. Birthdays were always a big occasion. The children felt very special because their grandparents would take them to the city to choose a gift of their choice and then have a meal, usually finishing at Darrell Lea.

Christmas Day usually started off at their home where they would receive a few presents for their parents and then they would run down to their grandparents where there would be a room full of clothing and toys for them. Christmas dinners were usually at 356 Howe Parade with the deceased cooking the roast turkey at her place. At Easter there was an Easter egg hunt in the grandparents back yard.

They ate their evening meals at home with their mother doing the best she could to cook nice meals. The children also relied a lot on seeing their grandmother for extra food and treats they could eat.

Sharlene would occasionally accompany her grandfather to work on the wharves, doing things like putting baggage tags on suitcases for the Tasmanian liner and he would pay her a couple of dollars. He also did that for her siblings.

In the early 1980s, Mr Briggs retired from work, although he was still healthy and strong. Because he had more time on his hands, he planned outings for the children and sometimes they stayed away overnight. Sharlene recalls staying overnight with her siblings and her grandparents at the deceased’s sister caravan at Phillip Island. She said her grandparents did not go away from Port Melbourne for any significant period of time or go away on holidays themselves.

Mr Briggs’ health issues

In the early 1990s, Mr Briggs’ health deteriorated. He had an unsuccessful operation on his prostate and was subsequently diagnosed with Parkinson’s disease. The deceased’s health was still good and she looked after her husband until 1999 when he went to a nearby nursing home.

The separation and divorce of the plaintiff and Freda

In 1993, Freda left 350 Howe Parade and separated from the plaintiff. By that date, Kylee was the only child still living at home and she was 19 years old. The plaintiff and Frieda divorced in November 1997. The plaintiff continued to live at 350 Howe Parade until it was sold in 1999. Since her separation from the plaintiff in 1993, Freda has lived independently in a rented flat. In the past five years she has lived with her eldest daughter, helping her with the children.

The sale of 356 Howe Parade

In 1999, the plaintiff and Freda sold 350 Howe Parade for $238,000. After the payment of $20,250 being the amount owing to the Ministry of Housing under the terms contract, the net proceeds of sale being $238,000 were divided equally between the plaintiff and Freda.

The plaintiff thought he received about $80,000, $90,000 or $100,000 for his half share. He said he gave $2,500 to each of the four children and kept the rest. The plaintiff was unable to say how he spent that money other than he ‘lived’, did things and paid for things. He was unable to point to anything in particular that he spent his money on, other than saying towards paying bills. In cross-examination, he said he may have spent $100 on week on alcohol, have a couple of bets of $20 a week on the few horse syndicates in which he was involved and he ‘might have a little few dollars on a horse’, say $20 at time. He agreed that he did not make any major purchases or take any major holidays and he was still working full time as a stevedore.

The plaintiff moves back to live with his parents in 1999

After the sale of 350 Howe Parade was settled in 1999, the plaintiff moved back to live with his parents at 356 Howe Parade. He has lived there ever since. He does not pay any board for living there and never has done so, saying his parents would not take it from him.

When the plaintiff moved to 356 Howe Parade in 1999, his father was elderly, his health was deteriorating and he was unable to continue living at home. Sharlene said that in 1999, the deceased was quite independent. She maintained her home and she also received assistance from the plaintiff and Kylee, as well as herself. Sharlene’s husband did minor repairs, such as replacing tiles in the kitchen, washers in taps and other plumbing work.

Sharlene said that until he went into a nursing home, Mr Briggs had been the financial manager in the household. The deceased did not know how to manage money and she asked Sharlene to help her manage the household finances. At that time, Sharlene was aged 29 years and lived in Box Hill South.

Sharlene said she assisted the deceased with the payment of the nursing home fees and the pharmacy account. The monthly bill for the nursing home was sent to Sharlene at her home, who then told the deceased the account needed to be paid. Sharlene then collected the deceased and they went to the bank where the deceased would withdraw the necessary funds. They then went to the post office for a money order and put the money in a slip in a box at the nursing home and the nursing home sent a receipt to Sharlene. That process continued from 1999 until Mr Brigg’s death in 2003.

From 1999 onwards, Sharlene saw the deceased on a regular basis, at least four or five times a month. As well as visiting her, she spoke to the deceased everyday or every second day on the telephone, sometimes twice a day, usually in the morning and the evening. She also visited her grandfather at the nursing home when she came to see the deceased. This was her pattern from the time that her grandfather went into the nursing home in 1999.

Sharlene checked regularly on the deceased’s welfare. Although the plaintiff was living at 350 Howe Parade and Kylee lived just around the corner, Sharlene wanted to know that the deceased was all right. Sharlene and the deceased liked to chat and they would chat for a long time about everyday things, such as Sharlene’s children, how Sharlene was, how the deceased was coping and what she was doing. She rang often because the deceased meant a lot to her. She was very close to the deceased and, even though she had a mother, the deceased was a very strong influence on her, teaching Sharlene how to cook and be a good mother. Sharlene said that when she spoke to the deceased, she would usually tell her she was in a good mood and good spirits. Sharlene also helped by using her own money to purchase any clothing that the deceased needed.

The deceased executes a power of attorney

In 2000, the deceased made an appointment with her solicitor. She asked Sharlene to take her to the solicitor’s office. The deceased did not tell Sharlene why she went to her solicitors and Sharlene was not involved in any way. After the deceased had seen her solicitor, Sharlene drove her back to the nursing home. They did not have any discussion about the reasons for the deceased seeing her solicitor. At that appointment, it appears the deceased executed a power of attorney appointing the plaintiff and Sharlene as her attorneys under power. Sharlene did not know about the power of attorney at the time.

Sharlene became aware that she had been made a power of attorney for the deceased after her grandfather died in 2003 because she had sort out his bank account for the deceased. The bank told her that if she wanted to do the banking on her own, she needed to provide something that showed she could work on behalf of the deceased.

While the plaintiff continued living at 356 Howe Parade with the deceased, he worked full time as a stevedore and she received a pension. The plaintiff did not ‘have a clue’ what he was earning as a stevedore between the years 2000 and 2009, other than it varied depending on his shifts. The plaintiff said what he did earn was spent on looking after his mother but he was unable to identify what that might have been, other than he said he bought her a bed. By this stage, no one in his immediate family was financially dependent on him.

The plaintiff went away at least once a year for his annual holidays. In the early years, he would go to the Northern Territory. Sharlene said the plaintiff also travelled to race meetings about four or five times a year that entailed him leaving on a Thursday or Friday and coming back on a Sunday or Monday. In cross-examination, the plaintiff said he probably went to two weekend country race meetings a year and would stay overnight if the meetings were at Wagga Wagga. He thought there might have been on one trip to the races that took a couple of days. He denied that he would often go to race meetings starting on a Thursday and return home on a Sunday. He said when he was away he always made sure that Kylee was there with his mother.

Sharlene said that the plaintiff took some of these trips after 2006. Sometimes she was aware the plaintiff was going away before he went and sometimes not. If she had been told beforehand, she would offer to look after the deceased during the day, making sure she had food and was okay. She also kept in touch with the deceased and told the deceased to let her know when the plaintiff would be away so she could call in on her. Kylee also called in on the deceased when the plaintiff was away.

The plaintiff was asked about the deceased’s health after Mr Briggs died in 2003 and up until she went into the nursing home in 2009 – a period of six years. Without being specific as the years, he said he looked after his mother and did everything for her. At some stage, he arranged for meals on wheels for her but she did not like them, so he cooked for her. He arranged for her to go on outings about three times a week organised by the local council and arranged council help for her. About 12 months before she went to the nursing home, he said the deceased lost control of her bodily functions. The plaintiff arranged for someone to visit each morning to shower the deceased during the week. If the deceased lost control after that, either he or Kylee cleaned her up. During this period, the plaintiff worked full time as a stevedore. When he was working, he said Kylee would check on his mother.

Sharlene said that at the time of their grandfather’s death in 2003, the deceased seemed to be in good health. Sharlene continued to assist the deceased to pay her bills and was in regular contact with her.

Sharlene said the deceased’s independence altered over the ensuing years and she was fully independent in terms of her own needs with cooking and cleaning and personal hygiene up until about 2006. The first form of assistance provided to her was through the local council with someone come in to shower her. Her food was provided either by Sharlene, the plaintiff or Kylee, with the council providing meals on wheels for a short time. Sharlene said that until 2006, the deceased could basically wash herself, clean herself and cook for herself.

The plaintiff said the grandchildren would visit their grandmother during this period, however, the only person that plaintiff saw was Kylee. He then said he did not see Darna very much, that Dean would come and visit and that Sharlene never came much to the home, but she did come occasionally.

Dean said before the deceased went into the nursing home in 2009, he visited her at 356 Howe Parade about two or three times a month and when he did he only saw his father and his sister, Kylee. On those occasions, he saw his father caring for the deceased doing such things as the washing, cleaning and feeding the deceased.

In 2005, an incident in relation to the payment of rates on 356 Howe Parade arose when the deceased received a letter from the City of Port Phillip dated 26 April 2005 stating that the rates on her property were in arrears. The deceased showed the letter to Sharlene because she did not understand why the rates were in arrears to the extent of around $1,900. She told Sharlene the plaintiff usually paid the rates. Sharlene told the plaintiff about the letter and that the rates needed to be paid promptly. Sharlene also spoke to the City of Port Phillip and subsequently drafted a letter to the City, with which the plaintiff agreed, advising that the arrears would be paid with monthly payments of $400 to be paid by either Sharlene or the plaintiff.

An incident also occurred in 2005 or 2006 when the deceased told Sharlene that the plaintiff had said he needed the Howe Parade property to be used as security for a loan and for the deceased to be the guarantor for the loan. Sharlen spoke to the plaintiff who told her he needed a loan of about $70,000 because he had debts to pay. He needed security for the loan and he also wanted to the Howe Parade property put into his name. The plaintiff did not tell Sharlene what debts he had to pay. Sharlene told him she did not agree with this and that the deceased did not want the plaintiff to put her house at risk. The deceased held the certificate of title to the Howe Parade property and she handed it to Sharlene telling her to keep it safe and away from the plaintiff.

The plaintiff denied that he ever had any intention of borrowing money at this time and said he would never have asked his mother to use her house as security for a loan. Sharlene disagreed with the plaintiff’s evidence and reiterated that the plaintiff wanted to borrow money using the house as security. Sharlene kept the certificate of title in safe from the time the deceased handed it to her.

Sharlene said by 2009 the deceased’s state of health was very poor. In late 2009, the plaintiff, Kylee and Kylee’s son, Joshua, went on holiday to Broome in Western Australia and they arranged for the deceased to be placed in respite care. While she was in respite care, the deceased suffered a stroke. She was then moved to the Alfred Hospital where she stayed for a few weeks. After that, on 29 December 2009, the deceased was moved to a nursing home.

By the time the deceased went to the nursing home, the plaintiff said she was sick and her legs had gone on her. Her contact persons in case the nursing home needed to speak to somebody were the plaintiff, and Kylee. The plaintiff visited the deceased every day, if possible, at the nursing home. Kylee visited the deceased in the nursing home every day, usually with the plaintiff and Joshua, and make sure that she was cleaned and fed. Kylee sometimes saw Sharlene at the nursing home visiting the deceased.

The plaintiff moves his best friend to live at 356 Howe Parade in early 2010

Sharlene said that after the deceased moved to the nursing home, the plaintiff remained living at 356 Howe Parade. In early 2010, a friend of the plaintiff’s called Kevin Evans started living at 356 Howe Parade. Sharlene thought that the plaintiff had not asked the deceased whether Mr Evans could live at 356 Howe Parade. When Sharlene discussed this with the deceased, she said the deceased was not aware that anyone was living else was living at the property. The deceased was quite startled by this news and because Sharlene did not want to upset her, she did not mention it again. She discussed Mr Evans living at the property with the plaintiff and wanted to know if Mr Evans was paying any rent to the deceased. The plaintiff told her he would never charge rent to Mr Evans and their discussion became heated. Up until that time, Sharlene said her relationship with the plaintiff had been very good.

The plaintiff said that in early 2010 and shortly after his mother went to the nursing home, his best friend, Mr Evans, moved his caravan to 350 Howe Parade and lived in it. The caravan was connected to the household electricity. Mr Evans did not pay any rent or other amounts for his occupation because the plaintiff did not want to take any money from him. The plaintiff also said if Mr Evans saw any household bills, he would pay them but the plaintiff did not ask him to do that. Mr Evans remains living at 356 Howe Parade and has moved into the house. In total, he has lived at 356 Howe Parade for five years.

The death of the deceased in 2012

The deceased died on 2 April 2012.

Just before she died, the deceased became ill and the plaintiff and Kylee contacted Sharlene. Up until that time, Sharlene’s contact with the deceased had been her regular visits to her in the nursing home and her telephone calls. She last saw the deceased the day before she died. On that occasion, Darna, Dean, Kylee and the plaintiff were also present.

After the death of the deceased

Sharlene first became aware of the deceased’s will after the deceased’s death. The deceased had never discussed her will with Sharlene.

Sharlene did not have custody of the deceased’s bank books nor did she do any banking on her behalf. When the deceased was admitted to the nursing home, the plaintiff had custody of her bank books. Theplaintiff whether told Sharlene that the deceased’s finances were in order.

After the deceased’s death, Sharlene examined the deceased’s bank records. At the date of her death, the deceased’s bank account held a balance of $321. Sharlene said that after payment of the nursing home fees from her pension, the deceased would have had a balance of a few hundred dollars each month. The deceased’s other expenditure while she was in the nursing home was her pharmacy account that averaged about $500 per year, and the outstanding rates on 356 Howe Parade.

The plaintiff’s wishes for the future

The plaintiff said that he has lived in Port Melbourne all of his life and all his ties are in Port Melbourne. It is the place he wants to stay and he wants to die there. He said that houses in Port Melbourne are ‘very pricy’ and he believed that the money left in the estate of $600,000 (after the estimated costs of this proceeding are deducted) would not be enough to buy a house in Port Melbourne but would be sufficient to buy a unit. He intends to keep working to survive as he cannot live on the pension and pay his bills. His outstanding debts total over $22,000 and have been outstanding for years.

The plaintiff did not produce any evidence of the purchase price of units nor did he give any evidence about the possibility of renting a unit, as opposed to purchasing one.

The wishes of Dean and Kylee in respect of the plaintiff

Dean said he is aware of the terms of the deceased’s will and, if he retained his 20 per cent share of the estate of the deceased, he would agree to assist the plaintiff by providing all of his share to him.

Kylee is also aware of the provisions of the deceased’s will and she agrees with the plaintiff should have her 20 per cent share of the estate of the deceased. She also agrees with the plaintiff claiming ninety per cent of the deceased’s estate because she believes the plaintiff is entitled to it. She believes the house was always to pass to the plaintiff because he is an only child and the deceased’s house was his house.

In cross-examination, Kylee said the deceased communicated to her the reasons for the dispositions in her will but did not say what that communication was, saying only that it was an ‘unwritten law’ that the house would go to the plaintiff because he was the only child and ‘that is what people do’. She also said it was common knowledge in the family that the plaintiff was to get the house. When questioned further as to what the deceased said to her, she said

I heard her on many occasions say to [the plaintiff] ‘You won’t have to do this for much longer, I’ll be gone, I’m a burden’, things like that and ‘This place is yours’.

The financial circumstances
The financial circumstances of the plaintiff

The plaintiff is on a pension of $766 a fortnight but said he cannot live on that so he does a bit of work in the construction industry whenever he can. He did not give any evidence as to his living expenses. In the six or seven months prior to trial, the plaintiff said he did ‘a bit of construction work’ for about four or five days. He described the work as being a traffic controller on construction sites. He tells the on site traffic when to stop or go, places barricades on site and looks after people so they don’t get hurt on the job.

At trial he produced his pay slips for the work showing that he worked for three weeks over the period from 22 March to 18 April 2014. For that work, he earned $5,643.22 gross and $4,120.22 net. He then said he also has another pay slip to come in when he did two or three days work with the same company. He did not produce his 2013 tax return, saying he did not keep any documents. His return was prepared by an accountant and he said he has the accountant’s name although he also said he had forgotten his name. He did not take any steps to retrieve any further documentation for his current financial position, such as contacting his accountant.

He agreed that it was likely that he would get ongoing work in his work as a traffic controller on construction sites.

In cross-examination, the plaintiff agreed that earlier in 2014, he did some cleaning work for three to four weeks helping out a couple of friends who held the lease on the Cricketers Arms in Port Melbourne. He denied that he earned $450 a week for the job and denied saying this to Sharlene. What he did get for the work was that he could keep a tab for drinks and meals.

The plaintiff has a savings account with a credit union called Maritime, Mining and Power which has a balance of $363.42.

At trial, the plaintiff produced for the first time a one page document purporting to be his tax calculation for the tax year of 2008. This showed that the plaintiff’s taxable income for 2008 was $48,444 with a tax refund of $1,000. He also produced at trial his copy tax return for the tax year 1 July 2009 to 30 June 2010 which showed that his income was $42,813 with a tax refund of $6,500. In that year, he was employed as a building construction labourer.

Dean works as a stevedore and he said his father also worked as a stevedore from 1999 or thereabouts onwards, ceasing after about eight years. His father was employed as a supplementary employee at grade 2 level. This meant a level that was ‘on-call or casual’. At that level, the worker gets called in for extra shifts, and the more shifts they get the more money they receive as they receive penalty rates. He thought that the pay rate, with the penalty rates, would not be dramatically different from his own salary of approximately $113,000.

The plaintiff also said he gave his daughter, Darna, the sum of, he thought, $22,000 as a loan some eight to ten years ago or something like that. He said he has never said anything to Darna about paying it back nor has Darna mentioned this amount in her outstanding debts.

The plaintiff also produced a letter from Centrelink dated 20 May 2014 showing the present payments he receives from Centrelink. At the end of the document, there is category labelled ‘debt repayment’ showing the plaintiff owes Centrelink an amount of $8,308.65. Of that amount, the sum of $136.39 is for unpaid parking fines and the sum of $8,172.26 for overpayment of the pension due to undeclared income by the plaintiff. The original amount of the overpayment was $24,672 as at 27 April 2006 when it was determined by Centrelink that the plaintiff was not providing care.

The Centrelink document also shows that the plaintiff was receiving a carer’s payment for his mother while he was living with her and during the period that she was at home from 1999 to 2009. During that time, the plaintiff worked full time as a stevedore.

The plaintiff produced a copy of a statement of account dated 23 February 2014 for an American Express gold credit card showing a balance owing of $7,850. He was unable to produce any statement for the purchases for that amount simply stating that he does not keep documents. He said he did not have a clue when he last purchased anything on the card or drew any funds from it and has no idea how old the debt might be.

He has a personal loan with the Maritime, Mining and Power for $6,564.89. The plaintiff said this was a loan for ‘paying bills’ and ‘surviving’.

In 2012, the plaintiff received a $22,000 superannuation payment but was unable to say what he spent that money on. At time he received this payment, he had the credit card debts and Centrelink debts but did not use this money to repay the debts.

The evidence of Darna McLear and her financial circumstances

Darna and her husband, Shannon, a sergeant in the Australian Army, have two children, Paige aged eight years and April aged six years.

In 2010, April was diagnosed with autism. She attends the Burwood East Specialist Development School and has done so since she was aged three years. By letter dated 19 May 2014, Dr James Hu, a consultant paediatrician at Elgar Specialist Centre in Burwood, advised that he has known April since June 2010, seeing her on a regular basis. He described her symptoms Autism Spectrum Disorder (ASD, DSM-V), a severe disability being amongst the highest level of impairment that Dr Hu cares for in his patients. April requires constant care and supervision and it is likely that April will require support and supervision for her entire life. The costs of looking after April are considerable and ongoing with April requiring full time or direct care.

Darna’s mother, Freda, resides with them to help with the care of the two children, particularly of April. If Darna’s husband is posted interstate in his job with the army, which she said is likely, Darna will lose the help and support of her mother and then Darna will no longer be able to work full time.

The financial position of Darna and her husband is as follows:

(a)Darna works full time as an executive assistant earning $76,461 per annum and her husband earns $82,079 per annum;
(b)Darna has superannuation of $97,610 and her husband has superannuation of $359,000;
(c)they receive a carer’s allowance of $3,073 per annum for April;
(d)they own a Ford Territory motor vehicle valued at $18,000;
(e)they have personal loans and credit card debts of $120,637;
(f)they pay rent of $706 per fortnight; and
(g)they have no savings, do not own any real estate or have any other investments.

The financial circumstances of Dean Briggs

Dean works as a stevedore, grade 4 level. His income last year before tax was $113,000. His wife, Sally, whom he married in 2003, does not work. They have a daughter aged nine years. They own a house at Hoppers Crossing. He has accumulated superannuation of around $410,000. He has savings of $17,000 and his wife has savings of $10,000. He and his wife are in good health. They owe $103,000 on their house and pay school fees of $8,500 per year for their daughter. Their combined credit card debts are $6,450.

The financial circumstances of Sharlene Mantz

Sharlene recently separated from her husband. She lives in a rented house in Vermont East where the family have resided for the past twelve years. Her rental is $285 each week. She lives with her daughter, who is in Year 12. Her former husband is paying most of her bills, including the rent, until she finds other accommodation. She receives a family tax benefit. She is not employed at present but was formerly a receptionist. She intends to undergo further training shortly by doing a refresher course and a first aid course and hopes to obtain a certificate 4 for work with aged care. Sharlene’s husband has superannuation of approximately $150,000. Sharlene has superannuation of about $11,000 from when she worked part time in the past. She has no savings and credit card debts of approximately $3,000.

The financial circumstances of Kylee Briggs

Kylee previously worked as a permanent part-time medical receptionist working approximately 26 hours per week, but ceased that work five years ago when she was assaulted and injured. As a result of her injuries, she has had a number of operations and suffers from anxiety. She has not been able to work since the assault. In September 2012, Kylee received a compensation payment of $350,000 from which she pays herself an annual income. She has a child, Joshua, aged 15 years, who is in Year 10 at Albert Park College.

Kylee’s taxable income for the year ended 30 June 2013 was approximately $24,700 which includes income from her lump sum compensation payment of $350,000 and a part tax benefit from CentreLink. Until she received her lump sum payment, she received WorkCover payments being 75 per cent of her gross income of $650 a week.

Kylee has expenses for her son’s education such as school books, school uniform and a computer. Since 2000, she has rented a two-storey townhouse in Port Melbourne from the Ministry of Housing for about $220 per week calculated according to her income, which at the moment is about $220 a week, although she said her eligibility for the property is not means tested.

Applicable principles

I have considered the principles applicable in Part IV applications by adult children at length in a number of recent decisions, including Baxter v Baxter,[1] Brandon v Hanley,[2] Morris v Smoel,[3] and Salloum v Assouni.[4] For convenience, I repeat those principles here insofar as they are relevant. In an application for provision made under s 91 of the Act, the Court must decide:

(a)at the date of death of the deceased, whether the deceased had a responsibility to make provision for the maintenance and support of an applicant;
(b)if so, whether the deceased’s will made adequate provision for an applicant’s proper maintenance and support; and
(c)if not, the amount of provision that should be ordered.

[1][2014] VSC 377 (22 August 2014).

[2][2014] VSC 103 (21 March 2014).

[3][2014] VSC 32 (14 February 2014).

[4][2013] VSC 591 (1 November 2013).

In considering these questions:

(a)the Court must have regard to the matters set out in ss 91(4)(e)–(p);
(b)the Court must determine whether the deceased had a moral duty, responsibility or obligation to the applicant;
(c)keeping in mind the weight given to the freedom of testation, the Court will only interfere if the testator has failed in his or her moral duty; and
(d)that moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards.[5]

[5]Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston J). See also Blair v Blair (2004) 10 VR 69, 77–80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Andrew v Andrew (2012) 81 NSWLR 656, 660 (Allsop P), 679–80 (Barrett JA).

The basis of the Court’s jurisdiction is responsibility, traditionally described as the enforcement of moral obligations.[6] The question is what a wise and just testator would have thought it his moral duty to make for the plaintiff,[7] as expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd:

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v Manchester:
The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. 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.[8]

[6]Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston JA); Blair v Blair (2004) 10 VR 69, 75–6 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA).

[7]Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478–9 (Lord Romer); Grey v Harrison [1997] 2 VR 359, 361 (Tadgell JA), 364 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 820 (Ormiston J); Blair v Blair (2004) 10 VR 69, 76 (Chernov JA); Vigolo v Bostin (2005) 221 CLR 191, 200 (Gleeson CJ); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA).

[8][1938] AC 463, 478–9 (citations omitted). Cited with approval in, for instance, Grey v Harrison [1997] 2 VR 359, 364–5 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 815–19 (Ormiston J).

In Collicoat v McMillan, Ormiston J explained what is meant by the idea of a ‘moral claim’ so frequently referred to in the jurisprudence on this and similar legislative provisions:

In my opinion the expression ‘moral claim’ has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[9]

[9][1999] 3 VR 803, 818. See also Blair v Blair (2004) 10 VR 69, 77–80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA).

The plaintiff bears the onus of proving that the deceased had such a responsibility, on the balance of probabilities. In assessing the evidence, the Court must have regard to the seriousness of an allegation that the testator has abused his freedom of testation, and the difficulty of assessing the evidence in the inevitable circumstance that the Court cannot hear from the deceased, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008.[10]
[10]Briginshaw v Briginshaw (1938) 60 CLR 336, 362, 368–9 (Dixon J); Schmidt v Watkins [2002] VSC 273 (24 July 2002) [17]–[21] (Harper J); Webb v Ryan [2012] VSC 377 (3 September 2012) [21] (Whelan J); State Trustees v Bedford [2012] VSCA 274 (16 November 2012) [104] (Neave JA).

In Webb v Ryan, Whelan J referred to the difficulties in assessing the evidence in Part IV claims when he stated:

An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.[11]

[11][2012] VSC 377 (3 September 2012) [22] (Whelan J).

Whether the testator had a duty to provide further, and whether there is a failure to make adequate provision for the proper maintenance and support of an applicant, are determined by consideration of the facts and matters known to the deceased at the time of his or her death. A wise and just testator is deemed to be aware of the relevant circumstances prevailing at the time of death, but the testator will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of death.[12] Where an applicant’s financial position was sound at the date of death but had worsened substantially at the date of trial, the time for assessing need is at the date of the trial.[13]
[12]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ); Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [127] (White J).
[13]Panozzo v Worland [2009] VSC 206 (25 June 2009) [56]–[57] (Forrest J).

Although the deceased left only one asset of any value and her will provides that it is to be divided between five the named beneficiaries, the size of the estate is of some significance in that the interests of all of the beneficiaries should be safe guarded as much as possible. The adequacy or otherwise of any testamentary provision for an applicant cannot be considered in isolation from the resources and needs of other beneficiaries entitled to a share of the deceased’s estate.[14]
[14] Singer v Berghouse (1994) CLR 201 at [15].

Claims by adult children

Although it was long the position that for adult children, and in particular adult sons, ‘some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act’,[15] this is no longer the case.[16] Instead, the Court must, as with all applications under the Act, consider the responsibility of the deceased to the applicant, having regard to the factors set out in ss 91(4)(e)–(p).[17] In Walsh v Walsh, Hallen J helpfully summarised a number of general principles in relation to claims made by adult children:
[15]Re Sinnott (dec’d) [1948] VLR 279, 280–1 (Fullagar J); Hughes v National Trustees Executors and Agency Co of Australiasia Ltd (1979) 143 CLR 134, 147 (Gibbs J); Anderson v Teboneras [1990] VR 527, 538 (Ormiston J); Niehoff v Niehoff [1995] 2 VR 356; Grey v Harrison [1997] 2 VR 359; Collicoat v McMillan [1999] 3 VR 803 (Ormiston J).
[16]Blair v Blair (2004) 10 VR 69, 78–9 (Chernov JA).
[17]Allan v Allan [2001] VSC 242 (25 July 2001) [67] (McDonald J).

(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.
(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.
(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. 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.
(e) There is no need for an applicant adult child to show some special need or some special claim.
(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. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. 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.
(g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim.
(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. There is no standard measure for the extent of the duty owed by a parent to a child.[18]
[18]Walsh v Walsh [2013] NSWSC 1065 (12 August 2013) [121] (Hallen J) (citations omitted). Where his Honour refers to the Act, it is a reference to the Succession Act 2006 (NSW). However, the same principles would apply in the context of the Victorian regime.

Final observation on the relevant principles

The question of whether a plaintiff has been made proper provision involves a ‘broad evaluative judgment’, made with respect to a capable testator’s judgment as to who should benefit from the estate.[19] A balance must be struck between, on the one hand, the freedom our society accords to a person to do as he or she pleases with his or her own property, and on the other hand, the moral requirement that a testator consider those persons closest to him or her as being the first in the line of recipients of the estate. The Court should only interfere with the terms of a will if the testator has failed in his or her moral duty.[20] In Grey v Harrison Callaway JA stated:

it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.[21]

[19]White v Barron (1980) 144 CLR 431, 440 (Stephen J); Whitehead v State Trustees [2011] VSC 424 (2 September 2011) [40] (Bell J); Andrew v Andrew (2012) 81 NSWLR 656, 660 (Allsop P) 679–80 (Barrett JA); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [125]–[127] (White J).

[20]Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

[21][1997] 2 VR 359, 366.

In Slack v Rogan, White J said:

In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed.[22]

[22][2013] NSWSC 522 (10 May 2013) [125]–[127] (citations omitted).

The freedom of a testator to choose the persons who are to benefit under their will is and remains a central tenet of the common law world, and specifically the Australian legal system. The jurisdiction bestowed on this Court by Part IV of the Act inherently qualifies that freedom, but it does not destroy it. It is a jurisdiction that is enlivened where a testator has abused that freedom, but it is not enlivened merely because a beneficiary’s expectation of inheritance has been disappointed.

Credibility of witnesses
The plaintiff

The plaintiff was not a credible or truthful witness. He was not full and frank in giving his evidence. Even allowing for the fact that he was, as he said, nervous because of the proceeding, he gave general evidence. When pressed, he was unable to give any detail. He gave contradictory answers on many occasions, answers that were non-responsive or evasive. While I would attribute many of the difficulties he had giving evidence to an admittedly poor memory, rather than deliberate deception, that does not make his evidence any more reliable. In telling the family history and describing the circumstances of the deceased, I have preferred the evidence of his former wife, Freda, and of his children, to the extent that they contradict.

His financial situation and circumstances remain a mystery. The detail on his financial situation was deficient with no evidence of his expenses. His evidence assumes that he should be given enough of the funds in the estate to enable him to purchase a freehold property in Port Melbourne. There has been no thought by him in contemplating any rental arrangements for the future. On the day he gave evidence, he produced random documents for the first time concerning his financial situation, both past and present. Those documents failed to enlighten his financial situation other than to conclude that whilst he has worked all of his life and particularly from the time when his children ceased to be dependent on him, he has no savings whatsoever. Despite being asked numerous times, all he said was that he spent his money on living. It is inexplicable that he would have no funds, because he was earning a reasonable income and had none of the usual outgoings such as mortgage payments or rent. In addition, Sharlene’s evidence established that the deceased should have accumulated funds in her bank account during her years in the nursing home yet on her death, the deceased’s bank account only had a few hundred dollars in it. As the plaintiff was the only other person with access to that account, I can only conclude that he also spent that money.

Overall, the plaintiff was not full and frank in giving his evidence concerning his finances, was vague and evasive and produced limited documentation only on the first day of the trial. Notwithstanding that he has worked full time for nearly all of his working life, he was not able to explain with any satisfaction where all of his income has gone over his long working life. His evidence concerning his current part time work was not credible considering he initially said that he had worked for only four weeks recently.

Kylee

Kylee also was not a credible or truthful witness. She gave limited evidence concerning the situation and health of the deceased while she was still living at Howe Parade. Her evidence was also given in general terms in respect of a six year period, from 2003 until 2009. She was at pains to impress that the plaintiff did much of the caring of the deceased when she lived at Howe Parade and Kylee was very supportive of the plaintiff’s position overall. The evidence established, however, for the six year period in question, the plaintiff always worked full time and was away from time to time during that period. Further, the deceased’s health was reasonable until at least 2006 and the more onerous nursing care for the deceased was for a limited period of approximately a year before her move to the nursing home. On balance, the evidence did not support a conclusion that the plaintiff was the dutiful son that Kylee wished to portray.

Kylee also asserted that the deceased ‘communicated’ to her about the dispositions in the deceased’s will and that she believed the deceased’s house was the plaintiff’s house. Her beliefs were unsubstantiated and are contradicted by the deceased’s will made on 3 April 2000, more than 12 years before her death. It is unlikely, on balance, that the deceased would say anything about the provisions of her will to Kylie or the plaintiff. The most likely person the deceased would speak to about her will would have been Sharlene as she appointed her as executrix of her will. At no time did the deceased discuss the provisions of her will with Sharlene.

Sharlene, Freda and Dean

In contrast to the plaintiff and Kylee, Sharlene was able to give detailed evidence on all matters and did so in difficult circumstances where this proceeding has split the family. They were very close to each other and the deceased trusted Sharlene. I consider that Sharlene gave detailed and truthful evidence and she was an impressive and credible witness.

Where there is a conflict in the evidence, I accept Sharlene’s evidence over that of the plaintiff and Kylee.

Both Freda and Dean gave evidence on limited topics and I consider that they were both credible and truthful witnesses.

Matters to be considered under the Act

Turning to the specific matters to which I am required to have regard pursuant to ss 91(4)(e)–(o) and (p) of the Act, I have made the following conclusions.

(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.

The plaintiff is the son of the deceased. He has had a loving relationship with the deceased for the past 70 years. There has been no suggestion in this proceeding that the relationship was anything other than that of an ordinary relationship between mother and son.

(f)Any obligations or responsibilities of the deceased’s person to the applicant, any other applicant and the beneficiaries of the estate.

Apart from any obligations and responsibilities that arise as part of being a parent and a grandparent, the deceased did not have any obligations and responsibilities to the plaintiff or the grandchildren at the date of her death. Throughout their lives, and especially during the grandchildren’s childhood, the deceased and Mr Briggs assumed obligations towards the four grandchildren that were in many senses quasi-parental. I say that without meaning any disrespect to the parenting of Freda, or even of the plaintiff, but I observe that from the outset of their relationship, the deceased and Mr Briggs formed an unusually close part of the nuclear family.

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

The agreed asset value of the estate is $800,000 comprising the estimated value of the deceased’s property in Howe Parade Port Melbourne. This estimate is a reflection of the capital improved value set out in the rate notice for 2013/2014 for the Howe Parade property.

It is agreed that Sharlene, as executrix, should be reimbursed the sum of $6,521.41 for the payment of rates, building insurance and an outstanding legal account paid by her on behalf of the estate. Copies of these accounts were provided by agreement between counsel for the parties.

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

The plaintiff was not frank about his financial position and his evidence on his financial situation was evasive. He had no credible explanation for his lack of financial resources.

The plaintiff gave no evidence of his living expenses, simply saying he is unable to live on the pension. His financial situation remains unexplained as he has worked full time until 2012 and since then has obtained reasonably well paid part time work. His health was not the subject of any evidence so it would be expected that he could continue to work part time, if such work becomes available.

Of the evidence given by the plaintiff, based on his 2008 and 2010 tax information, the plaintiff had an income of just under $50,000 each year. Assuming that figure was his average income for the ten year period from 1999 to 2009 when he worked as a stevedore, he earned $500,000 in that ten year period.

In the same period, he also received $100,000 from his half share of the sale of the matrimonial home, an overpayment of $24,672 from Centrelink and he borrowed at least $7,850 and $6,565. In all, a total of around $639,000. During this ten year period he was living in his parents’ home rent free with unspecified expenses.

In addition, in 2012 he received his superannuation payment of $22,000. Although at that time he had at debts of more than $22,000 he did not use his superannuation to repay them.

I had some difficulty in reaching conclusions as to the plaintiff’s financial position because he has failed to produce cogent evidence on this issue and was not frank with the Court in explaining either his income or expenses. Ultimately, I can only conclude that as it is his case to establish, and as he has failed to establish it, the plaintiff has not proved any financial need that relevantly or substantially bears on the question of his entitlement to an order for further provision.

Three of the four grandchildren live in rented accommodation. Dean owns his own home.

Darna and her husband have an unknown financial future and, at present, rely on Freda to help them with their child with a severe disability. They have superannuation that, by reason of their ages, could not be accessed in the near future. Whilst Darna is able to work while Freda is living with her that may not be the case in the future. Their future financial situation is uncertain and if Darna’s husband is posted interstate then their income will drop substantially because Freda will no longer be with them to provide care for the children and Darna will have to cease working. They also have substantial debt.

Dean is employed as a stevedore earning a before tax income of $113,000 which is sufficient for his expenses. His wife and he have a young child and she does not work at present. They have limited savings. He has superannuation as well which also is not accessible due to his age. He has a mortgage of $103,000.

Sharlene has no financial resources and is dependent on her ex-husband to pay her expenses. She needs to re-train before she can re-enter the workforce. She will need to move and find alternative rental accommodation in the short term. Her youngest child is at school in Year 12.

Kylee no longer works as a result of injuries arising from an assault five years ago. She received a compensation payment of $350,000 in September 2012 which she has invested. Before the payment of the compensation payment, she was on WorkCover payments. For the year ended 2013, her taxable income was $24,700 comprising income for nine months from her lump sum investment and a Centrelink part tax benefit. She has reasonably priced rental accommodation and has lived in the same home since 2000.

Each of the four grandchildren have established competing financial needs of relevance, to greater and lesser degrees.

(i)Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.

Darna has a child with severe disabilities that impacts on her financial circumstances, although that is only relevant in assessing her resulting financial needs.

Kylee suffers from anxiety and has not worked since the assault. Although she has received compensation for that incident, there is no suggestion that the compensation she has received is adequate for her to address the ongoing issues resulting from that assault. The statutory compensation scheme can only ever be a limited recourse.

(j)The age of the applicant.

The plaintiff is aged 70 years. The four grandchildren are aged 47, 45, 44 and 40 years of age respectively.

(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.

Although some evidence was led that the plaintiff assisted Mr Briggs in renovating the Howe Street property, by his own admission that assistance was limited.

Whilst the plaintiff had a loving relationship with the deceased and cared for her, as did others, in her later years, he did not do as much caring as he asserted. I would accept that each of the plaintiff and the four grandchildren contributed to assisting the deceased in her old age. While the plaintiff lived with the deceased prior to her moving into the nursing home, and was best placed to assist the deceased, it appears clear that the extent of his assistance was limited by his work and other commitments. The plaintiff essentially put himself first and others filled the role of the deceased’s carer once she needed care. It is also not entirely true to say that the assistance was not for consideration, as he was allowed to live rent free with the deceased during this time.

Kylee helped the plaintiff and was able to check on the deceased as she lived around the corner from her and did not work. Sharlene’s evidence establishes that she made a significant contribution to the deceased’s welfare during this time, including but not limited to the small but so often undervalued gesture of simply calling the deceased to talk to her.

(l)Any benefits previously given by the deceased person to any applicant or to any beneficiary.

The deceased and Mr Briggs provided substantial direct and indirect financial support and assistance to the family over a long period of time. The deceased also provided Sharlene with financial assistance from time to time up until the 1990s. The deceased and her husband, Mr Briggs, were generous to both the plaintiff and the four grandchildren over their lives, giving them direct and indirect financial support and assistance as well as emotional support. All witnesses who gave oral evidence described a warm and loving relationship with Mr Briggs and the deceased. Without repeating the evidence I have already set out, it is difficult to imagine more generous parents and grandparents than the deceased and Mr Briggs.

(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.

The plaintiff lived in his parents’ home after his matrimonial home was sold in 1999 and was living there at the date of the deceased’s death. No direct evidence was led concerning the basis on which the deceased assumed that responsibility, but it appears safe to conclude that it arose from her lifetime commitment to, and love of, the plaintiff as her only child.

(n)The liability of any other person to maintain the applicant.

There is no other person liable to maintain the plaintiff.

(o)The character and conduct of the applicant or any other person.

Sharlene’s assistance to the deceased was, in my view, exemplary and went further than a relationship of grandparent/granddaughter. She travelled from South Vermont and spoke with the deceased every day and more often than not, twice a day, over many years. She assisted the deceased in many ways, such as buying her clothes, paying her bills, looked after the deceased’s financial matters, was one of the deceased’s donees under her power of attorney and was the executrix of the deceased’s will and estate.

In contrast, the plaintiff has spent his lifetime taking full advantage of his parents’ generosity. Their greatest strength as parents, and it seems to me their greatest weakness, was their generosity towards the plaintiff. They spoiled him. They purchased houses and a car, paid his bills, cared for his children, and provided a roof over his head. The plaintiff simply assumed that their generosity would continue for their lifetime, and apparently also assumed it would continue beyond their lifetimes.

(p)Any other matter the court considers relevant.

Both Dean and Kylee considered the plaintiff should have further provision with both saying under oath they were willing for their share of the estate to pass to him. Their views may have been said without the benefit of independent legal advice. What they choose to do with their share of the estate is a matter for them. Without the benefit of independent legal advice, I would not hold them to their representations at trial that they were willing for their share to pass to the plaintiff, and cannot assume that their share will therefore be an asset of the plaintiff. Nevertheless, I consider those representations as evidence of a willingness on their part to support the plaintiff. Their willingness to support the plaintiff is a relevant consideration that weighs against an order for further provision. Whether they in fact choose to do this by passing their share of the estate on to the plaintiff is not a matter that need be considered.

When the deceased was worried that the plaintiff wanted to borrow around $70,000 using the Howe Parade property as security for the loan, the deceased made certain that the certificate of title to the property was kept away from him. To my mind, this reinforces the clear intention, expressed in the will, that the deceased did not wish the plaintiff to have the whole of the property. If that was her intent, as Kylee asserted, she surely would have been willing to make the property available as security for a loan in his favour, as it would in any case fall to him. The deceased instead was concerned that the property should not be encumbered by a loan in favour of the plaintiff, as this would reduce what was available to be distributed to her grandchildren.

The deceased gave evasive and non-responsive evidence about his financial circumstances both at the present time and in the past, for example, he received a lump sum of well over $100,000 from that sale but could not state what he spent it on other than just living. He also worked full time until the deceased’s death and could not explain what he spent his income on over the years after his children were all working or had left home. I consider the evidence establishes that the plaintiff is financially irresponsible, and the deceased knew this. It is likely that the disposition in the will was at least in part a deliberate decision by the deceased to ensure that her estate was not squandered by the plaintiff without ever reaching her grandchildren.

The plaintiff moved his friend, Mr Evans, to the deceased’s Howe Parade property shortly after she moved to the nursing home in late 2009 without the consent of the deceased. Mr Evans is still living at Howe Parade and has not paid any rent to the deceased or the estate. The plaintiff said he would never ask Mr Evans to pay rent, demonstrating a basic failure on the part of the plaintiff in terms of his obligations and responsibilities to the deceased and the estate. At the time the deceased was alive, and since then, the property has not belonged to the plaintiff, and yet he has treated it as his own. Apart from a further example of financial irresponsibility, this was disrespectful to the deceased.

Analysis

The primary submission by the plaintiff was that the deceased only had one testamentary obligation and that was to the plaintiff. It was submitted that the natural order should be that the child inherits from the parent and that child in turn benefits his or her children. In this case, there was no good reason for the deceased to alter that natural order. It was submitted that the deceased was able to provide for the grandchildren only if she had discharged her obligation to the plaintiff. It was said that because the deceased favoured her four grandchildren over her only child, she abused her right of testamentary freedom and failed to act as a just and wise mother.

The plaintiff relied on the cases where grandchildren have made a claim for provision saying that these cases indicate the approach that is indicative of how a wise and just grandparent or parent ought to view his or her testamentary obligations to an only child.

Further, it was submitted that the deceased knew or ought to have known that the plaintiff did not own a home, would not have the means of acquiring his own home and the deceased’s will threatens his future security of a home of his own.

In such circumstances, it was submitted the deceased’s minimum obligation was to leave the deceased’s estate to the plaintiff absolutely, however, given that the only asset of the estate must now be sold to pay legal fees, then proper provision for the plaintiff is for him to receive 90 per cent of the residuary estate, with the remaining 10 per cent divided between the four grandchildren.

In my view, this submission fundamentally misunderstands this jurisdiction, and this case. The four grandchildren are not claimants under Part IV, seeking to establish that they are entitled to further provision. They are named beneficiaries under the will. They are entitled to the provision that the deceased made for them in her will, and they are entitled to that provision unless and until the plaintiff can establish a case for further provision. This is not a case that should be analysed by reference to the cases where grandchildren have made claims for provision on a grandparent’s estate, as the plaintiff submits. Instead, this is a case in which the interests of the four grandchildren should be safeguarded, and their resources and needs properly considered.

It is misconceived to say there is a natural order that the child inherits the whole of an estate from the parent and that child, in turn, benefits his or her children or that there was no good reason for the deceased to alter that natural order. Although community standards would expect a parent to make some provision for a child, there must also be a balance between the requirement that a person can do as he or she pleases with his or her own property and that a testator consider those persons closest to him or her as being the first in the line of recipients of his estate. The Court should only interfere with the terms of a will if the testator has failed in his or her moral duty.[23] The satisfaction of that balance is not, in the circumstances of this case, for the deceased to leave all of her estate to her only child.
[23]See, e.g., Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

In this case, the family relationship between the deceased and her four grandchildren was very strong. All witnesses who gave oral evidence attested to that strong relationship. The deceased always lived close by to the grandchildren and were fully involved in their upbringing and she and Mr Briggs provided significant direct and indirect financial and other support to them. The strong relationships continued for the whole of the life of the deceased, particularly with Sharlene and Kylee. In making provision for her grandchildren as well as the plaintiff, the deceased carefully considered her moral obligations, and exercised her freedom of testation by choosing to provide for those persons closest to her as the principal beneficiaries: her son, and her four grandchildren.

Having regard to the facts and circumstances of this case, the deceased was in the best position to determine what provision she should make for the plaintiff and considerable weight must be placed on her testamentary wishes. The deceased was aware of the plaintiff’s shortcomings. He was a poor provider for his children from the beginning. This can be seen from the substantial direct and indirect support and assistance given by the deceased and Mr Briggs over a long period of time. To the extent that the plaintiff relies on the submission of the ‘natural order’ of inheritance, the deceased knew it would be unlikely that the plaintiff would provide for his own children on his death. The plaintiff is a spendthrift, accumulating no assets during his lifetime, with the evidence disclosing that his ability to handle money is limited. The deceased would also have known that the plaintiff would have the support of both Kylee and Dean.

Her testamentary wish was to provide for those of her family to whom she was closest. This is what she did and her dispositions recognise those close relationships, the support and assistance provided to her over a long period of time and the inability of the plaintiff to be able to provide for his own children in the future. This includes the plaintiff and his contribution for his support and assistance to her, albeit with the strong assistance from both Sharlene and Kylee.

The deceased’s moral responsibility to the plaintiff is not to provide all of the estate to him so that he might purchase a freehold property or, as put at trial, to be given 90 per cent of the estate. That provision fails to safeguard the interests of her four grandchildren all of whom have financial need themselves, particularly Darna and Sharlene. If Dean and Kylee wish to assist the plaintiff in the future then they are able to do so of their own volition.

In my view, the deceased has satisfied her moral responsibility to the plaintiff by making provision that he be left a one fifth share of her estate.

Conclusions

Accordingly, the plaintiff’s application is dismissed.

In addition, it was common ground that Sharlene should be reimbursed for the expenses of $6,521.41 she has paid on behalf of the estate. It was also common ground that the Howe Parade property should be sold. As the plaintiff and his friend, Mr Evans, are currently living in the property, the orders should include an order that both the plaintiff and Mr Evans vacate the property by a specified date prior to the sale.

I will hear the parties as to the final form of orders and costs.

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