Busuttil v DeGabriele

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 2012 of 02705

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

and

IN THE MATTER of the Will and Estate of JOSEPHINE BUSUTTIL deceased

WILLIAM BUSUTTIL	Plaintiff
and
JACKLYN DeGABRIELE and JOSETTE DeGABRIELE (Who are sued as Executors of the Will of the above named deceased)	Defendants

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2013
DATE OF JUDGMENT:	2 May 2013
CASE MAY BE CITED AS:	Busuttil v DeGabriele
MEDIUM NEUTRAL CITATION:	[2013] VSC 215

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ADMINISTRATION AND PROBATE – Testator’s Family Maintenance - Application by stepson – Whether the deceased made adequate provision for the proper maintenance and support of the plaintiff – Section 91 Administration and Probate Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R C Wells	McNab, McNab & Starke
For the Defendants	R Boaden	Victor Borg & Co

HIS HONOUR:

Introduction

Josephine Busuttil, who died on 16 August 2011, left an Estate valued at approximately $846 000. After certain pecuniary legacies, payments and expenses the deceased’s Will dated 21 June 2011 provided $100 000 for her disabled 53 year old stepson the plaintiff, and otherwise left a residuary estate of approximately $358 108 to the deceased’s brother and his wife, and the deceased’s two nieces and a nephew. The deceased did not have any children of her own.

In this proceeding commenced by originating motion dated 10 May 2012, the plaintiff claims that the deceased’s Will of 21 June 2011, failed to make adequate provision for his maintenance and support. The plaintiff seeks provision for proper maintenance and support from his stepmother’s Estate sufficient to enable him to purchase modest freehold accommodation of his own, for about $320 000, and in addition $50 000 to be applied to discharging his debts, the purchase of private health insurance and to provide for some limited discretionary expenditure.

For reasons set out below I am persuaded that William Busuttil has established an entitlement, under the provisions of Part IV of the Administration and Probate Act 1958 (“the Act”), to a specific legacy of $ 250 000.

Background and facts

The affidavit material filed by the parties, and oral evidence given by the plaintiff at trial, establish the following:

(i)the plaintiff’s father Saviour Busuttil, known as “Sam” was born in the 1920s and died on 31 July 2010;
(ii)Sam and his first wife, Rosina, had three children;
•Antoinette, born in 1951
•Raymond, born in 1953, and
•the Plaintiff William Busuttil, known as “Billy”, born on 29 March 1960.

(iii)In the 1950’s Sam and Rosina bought a home at 4 Pridham Street Flemington (Pridham Street);
(iv)Rosina died in September 1960;
(v)Billy lived with his father and neighbours and two maternal uncles for a year or two after about late 1960;
(vi)After several years the three children went to separate institutions. Billy was made a ward of the State, and save for a few days in 1978 he never again lived with his father;
(vii)Billy became a Ward of the State of Victoria in about 1963 and was sent to live at Hillside in Glen Waverley;
(viii)In 1967 Antoinette returned to live with her father;
(ix)In 1970 Sam completed paying for Pridham Street and became sole registered proprietor of that property;
(x)Some time after 1972 Billy was moved to the Sandhurst Boys’ Home in Bendigo. Sandhurst Boys’ Home is for boys with intellectual disabilities and was run by the Victorian Department of Health;
(xi)In March 1978 Sam married Josephine, who was born in 1930 and known as “Jessie”. His children were then all adults;
•Antoinette, then aged 27
•Raymond, then aged 25
•Billy, then aged 18.

(xii)In 1978, after Sam married Jessie, Billy came from Sandhurst Boys Home and lived with them but this arrangement did not work and Billy lived with his father and Jessie for only a few days. Billy then went to live with Antoinette and her husband;
(xiii)In about 1980 Billy moved to his present address, a flat on the top storey of a 3 storey building at 17/42 Victoria Street, Flemington where he has resided for over 30 years;
(xiv)In 1990 Sam, as sole proprietor, transferred Pridham Street to himself and Jessie as joint proprietors;
(xv)On 31 July 2010 Sam died. He made a Will dated 15 December 1999 which bequeathed his estate to Jessie, if she survived him, and in the event she did not then, save for a small pecuniary gift, Sam divided his net estate equally between Billy and his other two children. However, at the time of Sam’s death his only estate assets of value were those held jointly with Jessie, all of which passed to her by survivorship. Accordingly, there was no grant of probate sought in relation to Sam’s Will;
(xvi)In 2010 Jessie was registered as surviving proprietor of Pridham Street;
(xvii)On 21 June 2011 Jessie made her last Will;
(xviii)Jessie died on 16 August 2011;
(xix)Prior to 2011 Jessie had made three earlier wills under which more substantial provision had been made for Billy.

Plaintiff’s affidavit material

The affidavit material establishes that there was a less than well developed and loving relationship between the plaintiff and his stepmother Jessie.

In particular the affidavit of Antoinette Manago, sworn 1 August 2012 establishes the following:

(i)The plaintiff is unable to read and write, save that he can sign his own name.
(ii)The plaintiff spent several years at Sandhurst Boys’ Home in Bendigo, an institution for boys with intellectual disabilities, run by the Victorian Department of Health.
(iii)To a substantial degree the plaintiff has required the support and assistance of his sister Antoinette Manago in relation to many of his life administration challenges including the management of the plaintiff’s meagre finances.
(iv)The difficult situation created for Billy as a result of his father’s marriage to the deceased and as a result of the deceased’s disposition and his father’s interaction with his son in circumstances which existed. In this regard the Manago affidavit states the following:
33.Billy was very unhappy at Sandhurst Boys Home and wanted to leave and go to live with Dad. Dad had to be talked around by me to agree for Billy to come back to Pridham Street. Dad saw Billy as a problem that he did not want responsibility for. He had not wanted a third child and our mother passed away soon after Billy was born leaving Dad with the responsibility he did not want. Eventually Dad and Jessie agreed that Billy could come to live with them at Pridham Street if he was released from Sandhurst.
34.Billy stayed at Pridham Street only for a couple of days. Jessie changed her mind and said that she did not want Billy to live there. Billy then moved to Gordon House in Footscray where he stayed for a few months.
52.Billy’s flat in Victoria Street is only a short distance from the house at 4 Pridham Street. It is a matter of only about 100 metres. Because of that proximity Billy would spend time at Pridham Street. It was a regular thing for him to go there for lunch. Billy’s welcome at the house however was very much dependant on Jessie’s mood. There were times when Billy would be turned away at the front door. There were times that there would be arguments over the food on offer because Billy would query why portions set aside for him were less than that for his father.
53.Billy did not receive financial help from Dad or Jessie over the years.
54.Jessie was not a person with a reasonable disposition, she was uncaring and not someone who would meet you half way on an issue. She took the view that she was the boss. This would often be the source of friction. She never accepted Billy and myself as true family. We were always made to feel like outsiders when it came to family occasions and we were never made to feel welcome.
55.Despite these problems, Billy still sought out contact with Dad over the years and endeavoured to have a relationship with Dad and with Jessie. Billy though was often oblivious to the lack of respect that he was being given in return.

The affidavit of the plaintiff William Busuttil (Billy) sworn 6 August 2012, insofar as it is significant, establishes the following:

(a)The plaintiff is illiterate, has no assets of any significant value and lives alone in a Housing Commission flat in Flemington, where he has resided for over 30 years;
(b)The plaintiff’s principal reliable source of income is his disability support pension. The plaintiff also receives a Pension Supplement and rent assistance from Centrelink. Centrelink deducts what is referred to as a Government Housing Payment, an account of Billy’s rent and also payments on account of electricity and gas, resulting in receipt by the plaintiff of a net sum of about $557 per fortnight. From this sum is deducted $85 a fortnight in repayment of a debt in the sum of $1110, owing to Centrelink. The plaintiff also pays about $19 per fortnight for cover under a policy intended to pay for the plaintiff’s funeral expenses.
(c)The plaintiff does not have a car or a landline telephone, however he does use a mobile telephone on a prepayment plan. The plaintiff does not drive but uses public transport or walks. He buys his own clothes and accesses a laundromat to wash his clothing.
(d)The plaintiff’s flat is a very small modest “bed sitter”.
(e)The plaintiff suffers from a stomach ulcer, and also suffers from undiagnosed stomach fits and dizziness. The plaintiff does not have any private health cover.
(f)The plaintiff has at no point received any financial support from his deceased father or from his deceased stepmother.
(g)The plaintiff did not receive any assets from the estate of his deceased father. All his father’s assets passed on his death to the plaintiff’s stepmother.

At the following paragraphs of his affidavit of 6 August 2012 the plaintiff states:

26.My flat is about a block away from 4 Pridham Street, my father and Jessie’s house. I would visit them on a regular basis. They had a dog “Titch” and I would take him for a walk. I would go over to see them almost every day. I would have dinner with them from time to time when Jessie felt like it – it depended on her mood at the time. Jessie wanted to control things and that sometimes led to friction between us but we would make it up later and life would go on.
27.When Jessie was in hospital for the last time before passing away she would ring me and ask me to bring her a muffin. She said that she didn’t like the hospital food very much. I took her in a muffin on a number of days.
28.I attended the funerals of both my father and Jessie.
30I want to get out of my bedsitter flat and into a better home. I would like a little unit that was my own. I would also like to stay in the Flemington area because I know the people there.

The plaintiff’s flat at 17/42 Victoria Street, Flemington, in Victoria, in which he has lived for over 30 years, is a very modest two room bedsitter, with sleeping, cooking, dining and living facilities all contained in the one room. The second room of the flat comprises a small shower and toilet. The overall dimensions of the flat are some 6.6 metres by 3.6 metres. Photographic evidence of the current state of the plaintiff’s dwelling confirms that this dwelling is indeed unprepossessing.

The plaintiff’s second affidavit sworn 15 February 2013 exhibits a copy of the Ministry of Housing lease of his flat in Flemington which the plaintiff noted contains a term entitling the Ministry of Housing and Construction Victoria to terminate his lease in accordance with the Residential Tenancies Act [Lease: paragraphs 4 and 11].

The plaintiff contends that his tenure under this lease is insecure. However, no evidence other than the lease was put forward to support this position and given the duration of the plaintiff’s tenure to date, the nature of his landlord and the likely protections afforded to the plaintiff by the Residential Tenancies Act, I am not satisfied that the plaintiff’s lease is likely to be insecure now or in the foreseeable future.

In the plaintiff’s affidavit sworn 15 February 2013 the plaintiff also states:

I would like to own my own home and I would like to live in the Ascot Vale, Flemington, Kensington, New Market areas of Melbourne, being the area in which I have lived for so long. Gladstone Park is also an area that I visit regularly because my sister Anne lives there and I would be comfortable with having a home in that area as well.

Plaintiff’s oral evidence

The plaintiff gave oral evidence in this matter at trial and was cross-examined. Most materially the plaintiff:

(i)stated that he supplements his pension income with very small sums which he earns from local shop owners and restaurant proprietors in consideration for casual work washing dishes, cleaning toilets and in recent times assisting a local fruiterer. In addition to very small cash payments some shop proprietors also from time to time provide meals to the plaintiff;
(ii)described his incommodious dwelling at 17/42 Victoria Street, Flemington;
(iii)stated that he vaguely recalled that the social worker had mentioned the possibility of alternative accommodation to him some years ago. However his recollection was that he was not provided with any meaningful details as to the possible alternative accommodation at Newmarket in Victoria;
(iv)confirmed that he was not happy with his current flat although he limited his complaints in oral evidence to there being “too much going on” and difficulties in relation to washing his clothing. This evidence appeared to relate to the fact there are no laundry facilities in the Victoria Street flat.

I also observe that in cross-examination the plaintiff clearly experienced great difficulty understanding questions put to him and in collecting his thoughts and effectively articulating them in court. However, taking into account all the plaintiff’s evidence as to the state of and limitations with his present accommodation and the plaintiff’s evidence that he wishes to leave his bedsitter flat and move into a better more suitable home of his own, I am satisfied that the plaintiff’s current flat is barely adequate and is inconvenient and I am also satisfied that the plaintiff desires to improve his current accommodation by means of a better standard small residential property owned by him.

The plaintiff has also relied upon affidavits sworn by his solicitor Mark Albert Maier dated 14 February 2013 and the affidavit of Paul Harrison, estate agent sworn 19 February 2013, which state that a single bedroom dwelling in Ascot Vale, Kensington, Flemington and Gladstone Park (one bedroom unit) would currently cost about $300 000.

In a further affidavit sworn 28 February 2013 Mark Albert Maier, clarifies that in the event that the plaintiff was to inherit a sum of about $300 000, and with that money purchased a residence of approximately the same value, neither the Centrelink payment of a Disability Support Pension nor the separate Pension Supplement payments would be affected.

Defendants’ Affidavit material

The defendants filed one affidavit in this proceeding, namely the affidavit of Josette DeGabriele sworn 25 January 2013, which, inter alia, responds to the plaintiff’s affidavit of 6 August 2012 and Antoinette Manago’s affidavit sworn 1 August 2012. Insofar as significant the DeGabriele affidavit states that:

(i)the plaintiff’s casual jobs always provided adequate spending money;
(ii)before and after the plaintiff’s father’s death, the deceased would often give the plaintiff money to buy fish and chips or Kentucky Fried Chicken and they would share a meal together;
(iii)a friction between the deceased and the plaintiff arose as a result of the plaintiff gambling which Josette DeGabriele does not accept has stopped.
In this regard I note that the plaintiff’s affidavit sworn 6 August 2012, states that save for the occasional Tattslotto ticket, he does not gamble. I accept this evidence, which was not challenged by the defendants in cross-examination.
(iv)Josette DeGabriele does not believe the plaintiff wishes to move out of his flat and cites an earlier point in time when a social worker made arrangements for the plaintiff to move to another Housing Commission flat but the plaintiff did not want to move because he was, in the deponent’s words “happy and content with the flat where he had been living for a number of years”.
(v)the plaintiff has no proper concept of money and in the past measures have been taken in an endeavour to ensure that the plaintiff more responsibly manages his pension funds and casual earnings. Josette DeGabriele also states that in her view it would not be prudent to give the plaintiff unrestricted access to any funds.
(vi)the defendants concede that the funds presently available for Billy should be made available for his benefit without limitation. The defendants do not seek to retain the gift-over to them in paragraph 3(f) (ii) of the Will. The affidavit also states that the Executor, their parents and their brother all consent to whatever sum the Court may consider is appropriate and necessary for Billy being provided to him absolutely so long as this is done in a manner that does not enable him to squander the fund.

Testatrix’s earlier Wills

The affidavit of Antoinette Manago sworn 1 August 2012, deposes to the following:

Ms Manago is the plaintiff’s sister. Josephine Busuttil made three wills prior to the will the subject of this proceeding, namely on 7 October 1980, 15 December 1999 and 7 October 2010.

Each of Jessie’s three prior Wills is exhibited to the Manago affidavit of 1 August 2012.

In substance, insofar as is relevant, these earlier wills made by Jessie provide for the plaintiff as follows:

(i)Will made 7 October 1980. In this Will Jessie referred to William Busuttil as her “son” and provided for a disposition to Billy, from one half of the deceased’s estate (from the capital as well as the income), a weekly amount to the maximum weekly amount Billy could receive without affecting his entitlement to the maximum amount of a Social Services Pension he was then receiving. This Will also provided that if at any time Billy was not in receipt of a Social Services Pension, then he should receive payment of an annual income derived from such capital for the periods during which he is not in receipt of a Social Services Pension, provided that the Trustee would be entitled, at its absolute discretion, to advance as much of the capital as it considers appropriate for the proper maintenance and support of Billy.
The Will of 7 October 1980 also provided that on Billy’s death, the remaining capital, and any accumulated interest in relation to the said one half of the deceased’s estate should be divided for the benefit of the children of Antoinette Manago and Raymond Busuttil, and their respective children, should they survive her.
(ii)Will made 15 December 1999. By this Will Jessie left her estate to be divided into three equal shares to be held by Trustees as to one such equal part or share “for my said husband’s son William Busuttil for his own use and benefit absolutely”. The other two equal parts being left in the same way to the children of Raymond Busuttil and Antoinette Manago.

(iii)Will made 7 October 2010. By this Will Jessie left the sum of $100 000 to her Trustees on trust to invest the said sum and use the income of such investments during the lifetime of William Busuttil, described as “the son of my late husband”, to provide for his maintenance and advancement in life and general wellbeing and to pay for certain specified expenses William Busuttil may incur. The deceased also empowered the Trustees to use such part or parts of the capital sum to meet any deficiency in income sufficient to provide for the plaintiff’s benefit and other expenses.
This Will also provided that on Billy’s death the capital and income remaining from the said $100 000 was to be divided into four equal parts and distributed as specified between Victor DeGabriele and Violet DeGabriele, and in the event those persons predeceased the testatrix, to the deceased’s nieces and nephew.
Jessie made the 7 October 2010 Will less than 3 months after the death of her husband.

The deceased made her last Will on 21 June 2011, in substantially the same terms as the Will dated 7 October 2010, summarised above, save that the extent of gifts to Raymond Busuttil and Antoinette Manago’s children were reduced. Jacklyn DeGabriele and Josette DeGabriele were appointed executors.

Jessie died on 16 August 2011, 13½ months after the death of her husband Saviour Busuttil (Sam) who died on 31 July 2010.

The children of Sam Busuttil, other than the plaintiff, namely Antoinette Manago and Raymond Busuttil have settled any claims they may have had on the deceased’s bounty in consideration for the total sums of $107 000 and $91 000 respectively. The deceased, as earlier noted, did not have any children. Leaving the plaintiff to one side, the remainder of the deceased’s estate goes to persons who have no particular or special call on Jessie’s bounty.

Size and nature of the estate and its present position

The affidavit of Josette DeGabriele sworn 25 January 2013, summarises the subject estate as follows:

22.Antoinette Manago and Raymond Busuttil, Sam’s two elder children, threatened to bring proceedings seeking further provision from the estate. Those claims were resolved at mediation on terms that Antoinette received $90,000 together with her costs and disbursements, and Raymond received $70,000 together with his costs and disbursements.
23.The cash received upon realization of the assets of the estate, and the conversion of all saleable property into money, amounted to $846,208.88.
24.The following payments have been made out of the estate funds:
(a)Funeral testamentary and administration expenses, debts and liabilities of the estate, and including costs of obtaining probate, amounting to $24,100.54.
(b)Settlement of the claim by Antoinette Manago - $90,000 plus costs and disbursements, a total of $107,000.00
(c)Settlement of the claim by Raymond Busuttil - $70,000 plus costs and disbursements, a total of $91,000.00
(d)Executors’ costs and disbursements in relation to the claims by Antoinette and Raymond, a total of $17,000.00

25.Currently the funds of the estate which are retained in our solicitors’ trust account and in an estate bank account amount to $607,108.34.
26.The disposition in the Will which remain to be satisfied, (again showing the paragraph numbers in which those dispositions appear in the Will) amount to $185,000 (plus interest) and are as follows:
3a$10,000            St Brendan’s Church Flemington
3b$10,000            Father Adami, Missionary Society of St Paul
3c$30,000            $10,000 to each of the three children of    Raymond
3d$15,000            gifts to the two children of Antoinette
3e$20,000            to Vanessa and Anthony Gravina, Jessie’s    friends
3f$100,000  to be paid to State Trustees and held on trust  for the benefit of Billy during his lifetime.

27.I am informed by our solicitor, Mr Victor Borg, and believe that the anticipated costs and disbursements of this proceeding, allowing for preparation, and a trial of only one day’s duration, are as follows:
(a)the Plaintiff $32,000.00
(b)the Defendants $32,000.00

28.The net residuary estate, insofar as it is able to be estimated, is therefore the sum referred to in paragraph 25 above, less the sums referred to in paragraphs 26 and 27, a net sum of $358,108.34.
29.Pursuant to Jessie’s Will, that net residuary estate is given as to a quarter share to my parents, and my brother and sister and I are each also given a quarter share of the net residue.

Jurisdiction to make an order under Part IV of the Administration and Probate Act 1958

In McKenzie v Topp[1] (“McKenzie”) Nettle J (as he then was), summarised the matters in relation to which the Court needs to be satisfied in order to invoke jurisdiction to make an order under Part IV of the Administration and Probate Act 1958 as follows (omitting footnotes):

Jurisdiction to make an order under Part IV of the Administration and Probate Act 1958 is dependent upon being satisfied that the deceased had responsibility to make provision for the plaintiff and also upon being satisfied that the will does not make adequate provision for the proper maintenance and support of the plaintiff. Each condition invokes consideration of the question of what is the provision that a wise and just stepmother would have thought it her moral duty to make in the interests of her stepson had she been fully aware of all the relevant circumstances. That question is to answered as at the date of death according to the standards of a wise and just testatrix - or, in other words, according to the standards of a fair and reasonable woman in the community and in answering the question the court is bound to have regard to the factors adumbrated in s. 91(4)(e) to (o), as well as to any other matter that the court considers relevant.

[1][2004] VSC 90 at [15].

Section 91 of the Administration and Probate Act 1958 provides as follows:

Power of the Court to make maintenance order
(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
(2)The Court must not make an order under sub-section (1) in favour of a person unless -
(a)that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.

(3)The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -
(a) his or her will (if any); or
(b) the operation of the provisions of Part I, Division 6; or
(c) both the will and the operation of the provisions -

does not make adequate provision for the proper maintenance and support of the person.
(4) The Court in determining -
(a) whether or not the deceased had responsibility to make provision for a person; and
(b) whether or not the distribution of the estate of the deceased person as effected by -
(i) the deceased's will; or
(ii) the operation of the provisions of Part I, Division 6; or
(iii) both the will and the operation of the provisions –

makes adequate provision for the proper maintenance and support of the person; and
(c) the amount of provision (if any) which the Court may order for the person; and
(d) any other matter related to an application for an order under sub-section (1) -
must have regard to -
(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;
(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(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;
(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(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;
(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;
(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;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant.

The Court’s approach to an application of the type under consideration has been recently summarized by Robson J in Boyd v State Trustees Ltd[2], as follows (omitting footnotes):
[2][2008] VSC 18 at [44]-[48].

44 Section 91(4) of the Act envisages a three stage approach to each application. The first stage is to determine whether or not the deceased had responsibility to make provision for a person; secondly whether or not the distribution of the estate of the deceased makes adequate provision for the proper maintenance and support of the person and thirdly the amount of the provision (if any) which the court may order for the person. In determining each of these matters the court must have regard to paragraphs 91(4) (e) to (o) and, pursuant to s 91(4)(p), to any other matter considered to be relevant.
45 In Blair v Blair [2004] VSCA 149 at [41], Nettle JA said that:
The court is bound in answering each of those questions to have regard to the matters mentioned in ss 91(4)(e)-(o) and pursuant to s 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters (referring to the matters mentioned) in are of themselves incapable of providing an answer to either question (referring to the first two questions). To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make a provision for a claimant, or that the testator failed to made adequate provision for the claimant, necessitates the application of a test or standard to the matters considered. The test remains one of whether and if so what provision a wise and just testator would have thought is his moral duty to make in the interests of the claimant.

Nettle JA’s observation was expressly approved by Callaway JA in Lee v Hearn, [2005] VSCA 127, and is consistent with Grey v Harrison, [1997] 2 VR 359, and Collicoat v McMillan, [1999] 3 VR 803. MacEwan Shaw v Shaw [2003] VSC 318, and Lee v Hearn, make it clear that the 1997 amendments made by the Wills Act 1997 do not require or justify a different approach from that approved in Grey v Harrison and Collicoat v McMillan.
46 In Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-9 the Privy Council said in relation to the moral duty test that:
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... 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.

47…
48. The breach of the moral duty is an objective test to be measured against all the relevant facts and in particular the matters referred to in 91(4)(e) to (o) if the Act and any other matter the court thinks relevant under (p).

In Grey v Harrison[3] at paragraphs 29 and 30 Callaway JA made a number of important observations as follows:

29.Secondly, 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. So much may be derived from the concept of "proper" maintenance and support but also, and more fundamentally, from those considerations.
30. There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.
[3][1997] 2 VR 359 at 366-367.

Consideration of the matters to which the Court must have regard under s 91(4) of the Act

It is convenient, at this point, to consider each of the matters identified in s 91(4)(e) to (p) of the Act.

(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 stepchild of the deceased. That relationship commenced in 1978, when Billy was 18 years of age. Billy’s father and Jessie did not desire to have Billy reside with them in their newly established marital home and consequently Billy lived with his father Sam and with Jessie for only a few days in 1987 before moving to live with his sister Antoinette and her husband. The relationship of stepchild and stepmother existed until Jessie’s death in 2011. Billy did not receive financial assistance from Jessie.

I accept that over the years Billy sought out contact with his father and endeavoured to have a relationship with both his father and his stepmother Jessie, including regular visits to his stepmother and father’s home, on an almost daily basis, walking their dog occasionally, having a meal with them and towards the end of Jessie’s life visiting her in hospital, and when she made such requests bringing her a muffin in hospital. Billy also attended the funerals of both his father and Jessie.

I also accept that Jessie did not make an effort to be welcoming to Billy and indeed rejected Billy’s efforts to develop a relationship with his stepmother and was generally unwelcoming to him.

In this regard I accept the defendants’ characterisation that Billy and Jessie’s relationship was never like that of natural parent and child and that their relationship was somewhat superficial and tenuous. However, I am also of the view that over an extended period Billy made a bona fide and sustained effort to keep in contact with and to develop a relationship with his stepmother.

Further, in my view Billy’s father’s lack of financial and emotional support for Billy during his lifetime and his apparent reluctance to assist Billy emotionally or practically, including being unreceptive to Billy’s efforts to develop a relationship with him during the years he was married to Jessie, establish that Billy’s father was other than a devoted or caring father in many substantial respects.

Notwithstanding the evidence which reflects a somewhat superficial and tenuous relationship between Billy and Jessie, it is noteworthy that in her Will made on 7 October 1980 Jessie referred to William Busuttil as her “son” and in all her subsequent Wills continued to recognise Billy as a member of the Busuttil family unit in that she described him as “my husband’s son William Busuttil”. Each of Jessie’s wills also made substantial specific provision for Billy. During the lifetime of her husband, Billy’s father, Jessie made more substantial provision for Billy than she did in the two Wills made after Saviour Busuttil’s death.

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

In the defendants’ submission it would be appropriate to consider Jessie had no minimum unavoidable obligation to make any provision at all for any persons in disposing of her estate. The defendants’ submissions note that Jessie had no spouse or children of her own and that Sam’s children were all adults when she married him and that they did not live with her or have any ongoing personal relationship with her. Further, the defendants contend that it is not necessary for them to argue this point because Jessie did in fact make provision for Billy, by setting aside $100 000 for his benefit.

In my view, in all the circumstances, and leaving aside for the moment consideration of Billy’s position, Jessie had no obligation or responsibilities to any other applicant or the other beneficiaries of the estate referred to in paragraph 23 above. Sam’s children, other than Billy, made a claim for provision out of the estate under Part IV of the Act. The agreed basis upon which their claims were settled is set out elsewhere in this judgment.

Further, as here, where beneficiaries or potential beneficiaries (apart from the plaintiff) say nothing relevant as to their financial position or claims on the testator’s bounty, the court may assume that such beneficiaries have no special claim, other than by reason of their prima facie relationship with the deceased, and further that such beneficiaries have adequate resources to meet their own needs.

Therefore, I have considered the comparative moral claims of all other beneficiaries or potential beneficiaries of the Will upon the basis that (save for Billy) each has sufficient wherewithal to meet his or her needs.

I therefore conclude that, other than the claim by Billy, there is no competing moral claim on the testator’s bounty.

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

The estate of the deceased was valued at approximately $846 209. The net balance of the deceased’s residuary estate available for distribution after expenses, is approximately $458 000 taking into account the settlement of claims by the deceased’s husband’s children, other than the claimant Billy, executor’s costs, pecuniary legacies and notionally allowing for the retention of the $100 000 legacy to be paid to the State Trustees Limited for the plaintiff’s benefit under the terms of the subject Will.

The estate assets are predominantly derived from the proceeds of sale of the deceased’s property at 4 Pridham Street, Flemington, together with the sum of about $74 400 also left by Jessie. The property at 4 Pridham Street was purchased and paid for by the deceased’s husband Sam Busuttil, the plaintiff’s father, by 1970.

In 1977 Jessie came to Australia without any assets, other than some antiques that had previously been her mother’s. Jessie did not enter the Australian workforce and devoted herself to household duties during her marriage to Sam. Sam Busuttil, the plaintiff’s father, was the sole breadwinner for his family except for what is said to be a small Maltese pension which Jessie received. Jessie also, in due course, received the Australian Age Pension.

(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

Billy receives a modest pension of about $556.70 per fortnight (after the deduction of sums in respect of rent and electricity by Centrelink). From this pension, fortnightly deductions are made on account of a debt repayment ($85) and an insurance premium ($19 (approximately)) reducing Billy’s net fortnightly pension income to approximately $453. Billy also, from time to time, receives very small sums of money and some sustenance in return for odd jobs he undertakes for local shopkeepers. Billy has no assets or cash of any significance. Billy has a Bank Account of approximately $40. Billy does not own a motor vehicle and has no superannuation. Billy has no debt, other than a relatively small sum in the order of $1100 owing to Centrelink, in relation to which Billy pays the abovementioned fortnightly payment of $85.

In summary Billy’s financial resources (including earning capacity) are very meagre and although Billy’s day to day financial needs, of necessity, have been managed by him, and others, in a way which has minimised his costs of living, he is now 53 years of age, illiterate and suffering some ill health including, a stomach ulcer as earlier detailed. The plaintiff has no discretionary income, no buffer, cash or an asset which could be disposed of to meet unexpected vicissitudes and he does not have health insurance or any superannuation.

Billy has no reasonable prospect of improving his principal income and in all probability faces the prospect of increasing costs of living associated with ageing and ill health, a diminishing ability to be able to rely on public transport, an increased reliance upon health care and a diminishing ability as he grows older to earn ad hoc casual income.

Added to these difficulties and needs, Billy has no means by which to deal with future adverse contingencies including those likely to arise in relation to his advancing age and ill health.

In essence Billy’s financial position is parlous and he is already in need with his needs likely to increase in the foreseeable future.

It was also contended on behalf of the plaintiff that his long term security of accommodation in public housing was potentially tenuous. As earlier observed, I am not persuaded that there is any real prospect that Billy will be deprived of public housing at the standard currently being provided and at about the same cost, adjusted from time to time on no more than an inflationary basis.

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

Billy has always suffered and continues to suffer from intellectual impairment and associated disabilities which, at 53 years of age, include an inability to read and write and /or to readily understand those conversing with him and to collect his thoughts and effectively communicate them. Amongst other consequences Billy’s predicament has resulted in him spending many years in an institution for intellectually disabled boys, run by the Victorian Department of Health. For most of his adult life Billy has needed a substantial degree of practical support and assistance from his sister Antoinette Manago.

Billy also suffers from a stomach ulcer and undiagnosed stomach fits and dizziness.

(j) The age of the applicant

Billy, who was born on 21 March 1960, is now 53 years of age.

(k)Any contribution (not for adequate consideration) of the applicant to build up the estate or to the welfare of the deceased or the family of the deceased

It is not established or suggested that Billy at any time made any contribution to building up Jessie’s estate.

Billy’s contribution to the welfare of the deceased has been identified above, to the extent addressed in the evidence. In summary that contribution consisted of regularly visiting his father and Jessie’s home, although his visits were not always warmly received. Billy from time to time walked his father and his stepmother’s dog. At the time Jessie was in hospital, prior to her death, responded to her telephone requests to have Billy bring her a muffin which he did on a number of occasions.

It would appear that Billy genuinely and frequently attempted to be part of his father and stepmother’s life and to develop a relationship with them both. However, it also appears that Billy was often rebuffed in this regard by both his natural father and his stepmother, probably at Jessie’s instigation.

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

There was no evidence that any relevant benefits had been previously given by the deceased to any relevant person.

(m)Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partially and where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

There was no evidence that the plaintiff had been maintained by the deceased.

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

There was no evidence that there were any persons liable to maintain the plaintiff, save as earlier summarised in relation to Billy’s receipt of a meagre Disability Support Pension and supplements.

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

Taking into account the facts and circumstances of this matter I find that there is no conduct of an adverse, or in any way disentitling nature in respect of Billy.

Billy’s conduct of visiting both his father, and more relevantly Jessie, has been described under (k) above and also elsewhere in this judgment.

The conduct of the deceased, referred to in (e) above, is also relevant insofar as it probably explains why, as the defendants submit, Billy’s relationship with his stepmother was “somewhat superficial and tenuous”.

(p) Any other matter the Court considers relevant

In this case there are other matters which I consider to be relevant and of significance.

The first set of related matters which I consider to be additional factors which support a finding that the deceased should have recognised a greater responsibility to make provision for Billy are that Billy’s father Sam Busuttil’s Will provided solely for his wife, if she survived him, however his unpropounded Will also provided for approximately a third of his estate to go to Billy, if Jessie did not survive him. At all events, the entirety of Billy’s father’s estate passed to Jessie and this occurred just over one year before Jessie’s death. In the result the children of Sam Busuttil’s first marriage, in particular Billy who has special needs, were by passed in order that their father’s widow of his second marriage, Jessie, was adequately provided for, maintained and supported.

The next set of related matters which I consider also support a finding that the deceased should have recognised a greater responsibility to make provision for Billy are that Jessie herself appears to have recognised a more appropriate level of moral duty to provide for Billy in her prior Wills dated 7 October 1980 and 15 December 1999. In the Will dated 15 December 1999 Jessie made greater provision for Billy than she ultimately did in her last two Wills. It appears that subsequent to the death of Billy’s father Jessie’s perception of her moral duty to provide for Billy changed resulting in a reduction of provision for Billy in her Wills dated 7 October 2010 and 21 June 2011. These two Wills make the same level of reduced provision for Billy. This occurred even though Billy’s needs remained at least the same and there was no other material change of circumstances.

Eleven weeks after her husband Sam’s death, at the time Jessie made her Will dated 7 October 2010, and then nine months later when she made her Will which is the subject of this proceeding, Jessie was disposing of an estate which was made up almost entirely of the family home Sam Busuttil had finished paying for in 1970. This I also consider to be an additional factor which should have caused Jessie to recognise a moral obligation, as a wise and just testatrix, to make much more substantial provision for her disabled stepson Billy than in fact she did by her Will dated 21 June 2011.

These above matters together with those identified herein under the statutory heads of s 91(4)(e) to (o) of the Act, including Billy’s disabilities, age, parlous financial position, manifest need, Billy’s disposition towards Jessie and the absence of other persons with competing special relationships with the deceased or special needs, persuade me that, considered objectively from the perspective of a wise and just testatrix, Jessie, by her last Will demonstrated in all the circumstances a default of proper testamentary provision such as to justify curial intervention.

The views I have expressed above, take into account that in this case Sam Busuttil’s interest as joint proprietor of the 4 Pridham Street property, did not comprise part of Sam’s Busuttil’s estate at the time of his death in July 2010 because his joint interest automatically passed to his wife Jessie upon his death pursuant to the rules of survivorship and at that point Jessie was also a joint proprietor of that property.

In Robertson & Ors v Koska[4] (“Koska”), a case also involving a Part IV claim by stepchildren for provision out of the estate of their stepfather, the plaintiffs’ deceased’s mother owned a property jointly with the stepfather. Upon the death of the plaintiffs’ mother their stepfather acquired the plaintiffs’ mother’s joint tenancy interest in the matrimonial home, pursuant to the rules of survivorship. The plaintiffs’ mother predeceased the stepfather by approximately 5 years. The plaintiffs’ mother’s Will, if she made one, was not produced to the Court and there was no grant of probate. At the time of the stepfather’s death his principal asset was the former matrimonial home which he and the plaintiffs’ mother had purchased and which he then owned outright through survivorship. The stepfather made no provision in his Will for his stepchildren. In Koska Vickery J recognised the stepchildren’s right to proper provision of maintenance and support by her deceased stepfather and ordered a lump sum out of the estate for each stepchild.
[4][2010] VSC 134 at [114].

In Koska Vickery J notes that the circumstances of that case were distinguishable from those in McKenzie v Topp,[5] where a child or children of the first marriage stood aside in order that their natural parent might make adequate provision for the widower of the second marriage in a Will. His Honour is there referring to the fact that in McKenzie the estate of the plaintiffs’ natural parent, who predeceased the stepparent and against who’s estate the plaintiffs were proceeding, comprised assets which were not jointly owned by the plaintiffs’ natural parent and the surviving stepparent. However, at paragraph [114(e)] Vickery J considered that, in the circumstances of Koska, it was not a material point of distinction affecting the outcome under s 91 of the Act.
[5][2004] VSC 90.

Specifically Vickery J observed in Koska at paragraph [114]:

(d)… This raises a point of distinction with McKenzie v Topp. In this case Helana’s joint tenancy interest in the property could not have comprised part of her estate upon her death, because it passed automatically to her husband Franc by the rules of survivorship. This was not therefore a case, as in McKenzie, where a child or children of a first marriage stood aside in order that their natural parent might make adequate provision for the widower of the second marriage in a will, and gain moral advantage thereby.
(e)However, in the circumstances of this case, I do not consider that the point of distinction makes any material difference to the outcome. It is to be noted that this point was not a factor considered relevant by Cummins J in James v Day in determining that a testatrix, who had been provided for by her husband, the father of the plaintiffs, by joint ownership of the real property which passed to her through survivorship, assumed a moral responsibility to provide for her step children upon her death. The source of the moral responsibility in that case emanated not from the plaintiffs refraining from making a claim upon the death of their parent because they did not wish to disturb the step parent’s last years, but rather from the increment in the deceased’s financial position achieved upon the death of the spouse, which included gaining sole ownership of the major asset of the marriage, the real property in the matrimonial home, by the step parent’s survivorship and extinguishment of the joint tenant’s interest.

I consider, however, that although the factual circumstances of McKenzie and of Koska are distinguishable in a number of respects, where the parent of the disappointed child dies leaving an asset which that parent had owned jointly with the surviving stepparent, and no hereditary estate to the child of the deceased, the child of the first marriage, whether or not they refrain from making a potential claim at that time for maintenance and support, can be said to have been, in effect, by passed in order that their natural parent might make adequate provision by their Will for the surviving spouse of the second marriage. This is so, notwithstanding the effect of the rules of survivorship which may have operated in relation to some or all of the estate of the earlier deceased natural parent because s 91 of the Act, in appropriate circumstances, permits the Court to order an adjustment so as to provide for the proper maintenance and support of an applicant for whom the deceased had responsibility to make provision, and the Act does so in respect of whatever estate is left by the surviving stepparent.

McKenzie was the first Victorian decision where a claim by a stepchild succeeded. The plaintiff’s natural mother had died when he was six, and his father remarried when he was ten. The stepmother had no children of her own, and she treated her stepson as being in a position very similar to her own son, although she also maintained close ties with and interest in her own blood relatives, her sister and her nephews and nieces. After leaving home, marrying, and having children, the stepson's life disintegrated when his marriage failed, he lost his business, and his ability to work. On a disability pension, he came back to live with his stepmother in her home. At the date of the trial he was 66 years of age and had no assets and his sole income was from the pension. He had no home other than that of his stepmother. His stepmother left an estate consisting effectively of just the family home in Essendon which was then worth between $650 000 and $700 000.

The residuary estate was worth about $550 000 after allowing for pecuniary legacies of $25 000 and the costs of the litigation. By the Will the whole of the residue was left to a nephew of the stepmother. The pecuniary legacies included $12 500 for the stepson's own children, although the Will made no provision for the stepson himself. The judge awarded the stepson a lump sum of $275 000, which was intended to be sufficient to enable him to buy a modest home of his own.

In McKenzie the plaintiff’s stepson’s father did not at any stage own any part of the Essendon property which represented the great bulk of the plaintiff’s stepmother’s estate.

Nettle J, nevertheless considered in the circumstances that a factor of relevance was that at the time of his death the husband had been unable to ascertain the extent of support which would be required by his widow, and apparently therefore bequeathed his entire estate to her so as to ensure her proper maintenance and support and as a consequence made no provision for his children of a former marriage. In such circumstances his Honour considered that it may be appropriate when the stepmother dies, and there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, for the court to recognise some responsibility in the stepparent to make good the hereditary position of the stepchildren.

Nettle J noted that the evidence established that an amount left to the stepmother by the plaintiff’s father on his death in 1967, namely $12 500, equated to about the value of the Essendon property owned by the plaintiff’s stepmother at the time she married the plaintiff’s father. Accordingly, in essence the plaintiff’s father had earlier left the plaintiff’s stepmother an amount of money sufficient to purchase a house much like the house which comprised the bulk of the testatrix’s estate.

As to the issues relating to the origin of the funds in the deceased testatrix’s estate and their significance, Nettle J summarised the argument as follows:

56… The argument was that where a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make adequate testamentary provision for those children. More specifically, it was said, because it is often the case that a husband cannot know with certainty the extent of the support that his widow will require, and in those circumstances it may be that anything less than the entire estate would be inadequate provision for the widow’s proper maintenance and support, the children of the first marriage must forgo the provision which they might otherwise have received in order that their stepmother receive adequate provision. But if then later when the stepmother dies there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, it is her responsibility to make it good.

At [58] Nettle J said that the proposition described in paragraph [56] above was a novel proposition which “should be accepted, up to a point”.

… Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.

Nettle J summed up this aspect at [60]:

That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them.

McKenzie v Topp was applied in a general manner in James v Day[6] (“James”), and Keets v Marks[7] (“Keets”). In James the Plaintiff’s were adult children in their sixties. The Plaintiff’s father died in 1992, and their stepmother survived taking the whole of her husband’s estate under his Will and the jointly owned matrimonial home by survivorship. The stepmother died in 2003, leaving a net estate after legal costs of approximately $300 000 to her nephew and niece and made no provision for the stepchildren. The deceased’s attitude towards her stepchildren during visits was described as “polite but distant”.
[6][2004] VSC 290.
[7][2005] VSC 172.

Cummins J. said -

35.In the present case, it would be wholly inadequate to consider the question of the responsibility of the deceased to make provision for the plaintiffs in isolated concentration upon her circumstances at the immediate time of her death. The question of her responsibility to make provision, in the circumstances of this case, must be approached holistically and historically. When so approached, it is apparent that the genesis of her Estate was the father of the plaintiffs. Rightly, he provided for his wife by joint ownership of the major asset, the house, which passed to her by survivorship. It matters not that the plaintiffs did not seek to make a claim upon his death because they did not wish to disturb his widow’s last years or whether they did not because there was little in his estate. The question of the deceased’s responsibility to make provision for her step-children necessarily in this case bears an historical aspect.
36.In my view, by reason of the derivation of the deceased’s financial position, she did have a responsibility to make provision for the proper maintenance and support of each of the plaintiffs. She did not make any provision.

In Koska[8], commencing at [86], Vickery J also gave consideration to the proper approach in claims by stepchildren. His Honour said at [96] that the approach taken in both James and Keets, “was not faithful to the principle as it was stated by Nettle J in McKenzie.” His Honour then explained:

97In James, the approach taken by the trial Judge appeared to be shaped by treating the natural parent’s contribution as if it was the only factor justifying provision to the step child, rather than simply comprising one of the relevant factors. In Keets the trial judge appears to have also approached McKenzie as if it was something of a formula to justify the return of the value of the natural parent’s contributions to her son, the plaintiff.

[8][2010] VSC 134.

However, Vickery J did not otherwise comment on the approach by Cummins J in James at paragraphs [35] and [36] whereby his Honour took a holistic and historical view of the derivation of the deceased’s financial position.

At [95] Vickery J said:

Nettle J was appropriately cautious in his approach. In determining the two threshold questions required by the legislation to be considered under s. 91 (before any question arises as to the amount of provision (if any) which the Court should order in favour of an applicant), his Honour considered that, if children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow may be relevant to the question of whether she is responsible to provide for them. In taking this approach, it was clearly not intended by his Honour to lay down a rule of general application to be unswervingly applied in every such case. At most, and in the appropriate case, it may be treated as one of the matters Court considers relevant under s. 91(4)(p) of the Act, along with all of the other matters to which the Court must have regard under(4)(e) to (p).

In McKenzie at [46] Nettle J said the following in relation to s 91(4)(p) of the Act:[9]

Authority suggests that the sorts of factors to which regard might be had include the ability of the plaintiff to meet his financial responsibilities, the amount which is necessary for maintenance and survival, the size of the estate and of competing claims upon the testatrix, the standard of living of the plaintiff during the deceased's lifetime, the extent of contact between the plaintiff and the testatrix, the manner in which the plaintiff conducted himself in relation to the testatrix during her life, and the testatrix's wishes, in the sense of statements made by the deceased during her life as to the provision that she has or has not made for the plaintiff. It has also been submitted on behalf of the plaintiff that a further relevant consideration is that the plaintiff's father left the whole of his estate to the testatrix.

[9][2004] VSC 90 at [46].

Accordingly, it has been accepted that where the circumstances presented to the court include a situation where the deceased inherited the subject estate from the deceased parent of a stepchild, or where in substance the deceased’s wealth the subject of testamentary disposition came from the deceased parent of a stepchild, these may be factors to be taken into account under s 91(4) of the Act and thereby bear upon the determination as to whether the plaintiff step child is a person for whom the testator had a responsibility to provide. However, it must be emphasised that the provenance of the deceased’s estate is only a factor amongst many others to be taken into consideration and may be no more than a factor of “modest proportions” in the balance, depending on the particular circumstances.

In the present case the effect of Sam Busuttil’s death was that the whole of his estate passed to Jessie by survivorship. Sam Busuttil had bequeathed all of his estate to Jessie by his Will dated 15 December 1999, and for practical reasons, including the extent to which Saviour’s estate would pass to Jessie by survivorship in any event, his Will was not the subject of a grant of probate. I note again however that Sam Busuttil’s Will also provided that in the event that Jessie did not survive him, his estate would be divided equally between Billy and his other two children. In these circumstances I do not consider the devolution which occurred is rendered irrelevant because Sam Busuttil’s estate in fact passed to Jessie by survivorship, rather than by testamentary disposition. I also consider that this view is consistent with that taken by Cummins J in James at paragraphs [35] and [36] and Vickery J in Koska at paragraph [114(e)].

The substantial position remains that Billy’s father generated the interests in the Pridham Street property which Jessie jointly owned at the time of Sam Busuttil’s death, and the interest which passed to her from Sam Busuttil by survivorship at the time of her husband’s death.

For the above reasons I consider that the origin of the estate ultimately left by Jessie some 13½ months after Sam Busuttil’s death is a relevant factor to be taken into account and furthermore is a factor supporting a determination that the plaintiff is a person for whom the testatrix had a responsibility to provide.

I also find that in the circumstances Jessie should have recognised that as a wise and just testator she was impressed with a moral obligation to make proper provision for her late husband’s children, especially Billy who was disabled, to the extent she could taking into account any other calls on her bounty.

In so finding I emphasise that I am not identifying or applying any point of general principle in relation to the origins of the subject estate or in respect of claims for maintenance and support by stepchildren but rather factoring into the range of factors to which I have referred, this additional factor which is relevant in the circumstances of this case and which I consider in this instance should also have informed a wise and just testator in relation to his or her moral duty.

Conversely, I am unpersuaded as to the merits of the defendants’ submission that on all accounts half of Jessie’s estate (approximately) which represented her joint interest in Pridham Street at the time of her husband’s death should be regarded as “sacrosanct” and cannot be the subject of any adjustment to the subject Will under s 91 of the Act. Suffice to say firstly that the broad terms of, and discretion conferred on the court by s 91, reflect no such limitation. Secondly, the way in which the deceased acquired her joint proprietorship, namely via the plaintiff’s father’s gift, it would appear on the evidence, and some 20 years after the plaintiff’s father had paid for that house, establishes a basis upon which to regard the joint interest Jessie had earlier acquired as relevant to her consideration as to what provision should be made for her disabled stepson Billy. The ascertainment of the testatrix’s minimal moral obligation to provide maintenance and support is not, in these circumstances, predicated on only approximately half of Jessie’s estate being amenable to an application for proper maintenance and support under s 91(1) of the Act.

Defendants’ contentions

In addition to the contentions earlier identified and addressed in relation to s 91(4) (e) to (p) of the Act, the defendants emphasise that Jessie was free to dispose of her property as she thought fit and no basis existed to interfere with her dispositions unless the court could be satisfied that she had abused her right of freedom of testamentary disposition in that she had breached her moral duty in that regard. Further, the defendants asserted that it was not possible to identify any breach of moral duty to make provision for Billy on Jessie’s part and that the establishment of a $100 000 fund for Billy’s benefit was an appropriate measure of any responsibility which existed.

For the reasons which I have expressed I do not accept that Jessie has fulfilled her moral duty to make the provision which a wise and just testatrix would have thought it appropriate to make in the interests of Billy in all the relevant circumstances.

In relation to the plaintiff’s argument that Billy should not be subjected to “the lottery of survivorship”, namely the circumstance where approximately 13½ months after the plaintiff’s father’s death his stepmother Jessie died, whereas had the sequence of death been reversed and Billy’s father had not needed to provide for the support of his wife Jessie, Billy’s claim as a child with special needs would probably have been paramount and he would have had an entitlement to a large part of his father’s estate. The defendants’ response to this argument is that because Jessie was the legal and joint owner of the Pridham Street property from 1990 to 2011 there is no justification for the “lottery of survivorship” argument to operate so as to deprive Jessie of, at a bare minimum, the right to do what she pleased with at least her half interest in the Pridham Street property.

In my view the concept of “the lottery of survivorship”, employed on behalf of the plaintiff in argument, is not apt to describe any relevant circumstance or consideration in this matter. Rather, this metaphor appears to allude to the potentially material circumstance that, but for the ongoing need to make provision for a surviving spouse, a natural parent probably would, as a wise and just testator, consider it his or her moral duty to make appropriate provision for a surviving stepchild. The substance of this aspect of the plaintiff’s arguments was that a wise and just surviving stepparent should appreciate that they have derived substantial financial benefit from the deceased natural parent, in lieu of the natural parents’ child at the time of that parent’s death and therefore the surviving stepparent should consider it their moral duty to address that situation and make appropriate provision in their Will for a surviving stepchild.

In relation to Jessie’s earlier Wills, the defendants argue that the fact that Jessie made her earlier Wills in a certain way does not amount to evidence from which the court can legitimately conclude that Jessie did so because she acknowledged any particular moral obligation. Further, the defendants say that even if it was possible to infer that the making of earlier Wills by Jessie was a recognition of her moral obligation, the court should, considering the matter objectively, not take into account the terms of such earlier Wills as a basis for deciding that there was in fact a relevant moral obligation on the testatrix.

In my view the defendants’ argument in relation to Jessie’s earlier Wills fails to recognise the potential relevance of Jessie’s statements in her earlier Wills. I also consider that the extent to which any conduct on the part of the testatrix can be relied on to convey or infer her recognition of a moral obligation to make provision in the interests of the plaintiff depends on the relevant facts and circumstances of the case. Here, on the basis of the facts and circumstances identified, I infer that the testatrix’s Wills made on 7 October 1980 and 15 December 1999 convey a recognition by Jessie that she was under a moral obligation to provide for her disabled stepson. Those Wills were made some considerable time before the Will in issue, however there was no evidence of any material change of relevant circumstances in the interim.

In her earlier testamentary statements Jessie both mentioned Billy initially as her “son” (Will made 7 October 1980) and also on each occasion acknowledged Billy as part of the family unit by describing him as “my said husband’s son William Busuttil” (Will made 15 December 1999) son of my late husband (Will made 7 October 2010). Further, in the Wills made in 1980 and 1999, prior to Billy’s father’s death, Jessie made provision for Billy in more generous terms than in her Will made on 7 October 2010 only approximately ten weeks after the death of her husband, and by her final Will dated 21 July 2011 which was in substantially the same terms.

On the basis of Jessie’s said earlier testamentary statements and the circumstance of the reduction of her provision to Billy very shortly after Billy’s father’s death I infer that during Billy’s father’s lifetime Jessie recognised a moral duty to make substantial provision for Billy. However, after Billy’s father’s death Jessie reduced her provision to Billy, although there was no material change of circumstances relating to her obligations. The likely explanation for Jessie’s diminished generosity to Billy in the two Wills she made after Billy’s father’s death is that with Sam Busuttil gone, Jessie felt free to ignore some of the responsibility to provide for Billy which she had earlier accepted. Accordingly, although in this case I regard this as a less weighty additional factor, I consider that Jessie breached her moral duty in a way which, in combination with the other factors identified, justifies curial intervention and the substitution of the court’s determination of the provision a just and wise testator would have made, in these particular circumstances.

The defendants also argue that there are a number of practical reasons why Billy should not be entitled to his claim in these proceedings to a sum which he seeks with which to purchase his own modest flat and provide money for him to discharge his modest debts, purchase private health insurance, provide a fund for limited additional income and limited discretionary expenditure. On this aspect the defendants argue that the sum sought by Billy, if acceded to by the court, will not permit a sustainable long term occupation of his new home, and that, in any event, the total cost of providing Billy with a lump sum, including moneys in addition to those required for the proposed purchase of real estate sufficient to meet his likely additional expenses, would give rise to an impost on the estate so great as to be well beyond the proper limits of the relevant provisions of the Act.

The defendants did not put on any evidence as to the suggested practical difficulties referred to in the last preceding paragraph and for that reason, although I acknowledge that such concerns may well be justifiable, I am not persuaded that these suggested difficulties are likely to create an unworkable financial scenario, were the court to accede to the plaintiff’s claim in this matter.

The defendants also put forward arguments including Billy having insubstantial reasons to justify wanting to move to his own accommodation, and the defendants’ contention that Billy’s desire to live elsewhere for various reasons should only be given marginal significance and weight. The defendants say that in all the circumstances Billy would be better off living where he has lived for three decades because in the defendants’ view his quality of life would not be enhanced by him occupying his own modest apartment in or near the area in which he presently lives.

As to these further points I am of the view that these arguments do not give rise to more than marginal considerations in the exercise of the court’s discretion, in particular when deciding whether provision should be made and as to the amount of provision to be made.

I consider that the defendants’ argument also fails to recognise the way in which Billy’s ownership of a modest home may enhance his long term security by, amongst other things providing him with what the plaintiff described as a modest “nest egg asset” which in turn may well allow him to use that asset to, for example, arrange or pay for nursing home accommodation, or similar needs. However, in this regard in my view the more determinative factors are the extent of the available estate and the balance required between Billy’s entitlement to increased provision under Jessie’s Will and the weight to be given to Jessie’s freedom of disposition, in this matter specifically her express desires, including that her net residuary estate be distributed in quarter shares to the beneficiaries specified in paragraph 23 [29] above.

Establishment of jurisdiction under s 91(1) of the Act

Having regard to each of the matters identified in s 91(4)(a)-(p) of the Act, I am satisfied that the plaintiff is a person for whom the testatrix had responsibility to make provision as required by s 91(1) of the Act.

In summary, I consider that the plaintiff is presently in an elevated state of need as a result of his disabilities, his age and his overall circumstances which have been specifically identified. I also consider that the plaintiff is a person for whom the testatrix had responsibility by reason of the fact that the great bulk of the testatrix’s estate was derived from the plaintiff’s natural father Sam Busuttil who, upon his death, bypassed the plaintiff to ensure adequate provision for Jessie. A further factor is that the testatrix would, in all probability have known that Sam Busuttil had intended, were Jessie to predecease him, to make substantial provision for Billy. I also consider it to be a relevant factor in concluding that Jessie had a moral duty to make provision for Billy, that Jessie herself recognised Billy’s special needs including, it would appear, by the provision which the testatrix had earlier made in her Wills dated 7 October 1980 and 15 December 1999.

I am also satisfied that Billy endeavoured to develop a relationship with his stepmother throughout her marriage to his father and thereafter until her death, including doing the best he could do given his very limited capacity and resources and the generally unreceptive nature of his stepmother.

I find that in the identified circumstances of this case a right thinking member of the community, in Jessie’s position, would have considered that she must at a minimum make more substantial provision for her late husband’s disabled 53 year old son than she in fact did in her last Will.

Whether or not the distribution of the estate of the deceased person made adequate provision for the proper maintenance and support of the plaintiff

The court’s consideration of this second principal question is also reached having regard to each of the matters identified in s 91(4)(e) to (p) of the Act.

Further, upon the establishment of jurisdiction, s 91(4) (b) confers a wide power and discretion to make such orders as the court considers appropriate in the circumstances of the case.

The particular matters which I consider to be of moment in this regard are the plaintiff’s living conditions, the very weak financial predicament of the plaintiff, including his meagre income, and given his age, the likely deterioration in his financial circumstances in time as a result of being unable to undertake the ad hoc odd jobs which provide him with a small amount of cash income at that stage of his life.

It is also significant that the estate in question was in the order of $846 208 and that the plaintiff was the beneficiary of only $100 000, to be held by the State Trustees Limited for his benefit during his lifetime. I add that at trial the defendants have requested that this matter be considered on the basis that they are willing to surrender the remainder interest of the DeGabriele family, thus allowing the fund of $100 000 to be given to Billy absolutely.

I also consider that the absence of any other beneficiary or person with competing financial needs is an additional factor in the balance in support of the conclusion that the distribution of Jessie’s estate under her Will has not, in all the circumstances made adequate provision for the proper maintenance and support of the plaintiff.

The amount of provision (if any) which the Court should order for the plaintiff

The court’s consideration of this final question also requires the court to have regard to the matters identified in s 91(4)(e)-(p) of the Act. I am mindful of the observations made by Callaway JA in Grey v Harrison[10], in relation to the court’s broad discretion as to the appropriate amount of provision.
[10][1997] 2 VR 359 at 366.

In determining the amount of provision for the plaintiff, in the circumstances:

(i)I find that Jessie’s overall estate had a value of approximately $846 000, and the net residuary estate is approximately $458 000, with the notional inclusion in that amount of the $100 000 legacy to Billy;
(ii)I find that the evidence of Mark Albert Maier and Paul Harrison establishes that the plaintiff would require about $300 000 to purchase a one bedroom residential unit in the inner city regions of Flemington or Kensington or Ascot Vale or Gladstone Park;
(iii)I am also persuaded that the plaintiff would require some considerable additional capital to, amongst other things, meet the costs associated with any purchase of a dwelling and the ongoing maintenance and running costs associated with any such dwelling and to enable Billy to discharge his current modest debts;
(iv)I have taken into account the extent of the available estate and the need for a balance between Billy’s entitlement to increased provision for proper maintenance and support and the weight to be given to Jessie’s testamentary freedom in this matter specifically her express desires, including that her net residuary estate be distributed in quarter shares to the beneficiaries specified in paragraph 23 [29] above.
(v)I have determined in light of the above factors that the sum sought by the plaintiff is in excess of an appropriate provision for the plaintiff’s proper maintenance and support in all the circumstances and I further consider that the prospect of the plaintiff purchasing and being able to sustain home ownership is likely to be financially impractical given his financial and other circumstances and the value of the available estate.
(vi)I consider that an amount of $150 000, in addition to the amount provided by the deceased for the plaintiff’s benefit, is likely to provide both proper maintenance and support for the plaintiff, taking into account the various forms of governmental support he receives including inexpensive secure accommodation. I also consider that this level of provision will afford the plaintiff something of a nest egg asset which should provide a substantial measure of security for him as he ages and becomes less able to look after himself in various ways;
(vii)Accordingly, I consider that the total provision which the court should order for the plaintiff out of the estate of Josephine Busuttil, pursuant to s 91(1), is in the sum of $250 000.

For the above reason there will be an order that provision be made out of the estate of Josephine Busuttil for the proper maintenance and support of William Busuttil by way of a total lump sum payment in the sum of $250 000.

I will hear counsel as to appropriate orders in light of the above including any consequential orders in relation to the bequest to Billy in paragraph 3(f) and 3(g) of the subject Will, necessary adjustments to the legacies which are presently part of the residuary estate to be distributed to the beneficiaries under the Will, the form of orders appropriate to protect Billy’s interests in relation to the above sum, including the appointment of an appropriate trustee / administrator to assist Billy, and the like. I shall also hear any argument as to costs.

[2013] VSC 215

2 May 2013