Davison v Kempson
[2017] VSC 173
•20 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2016 01774
| Part IV of the Administration and Probate Act 1958 | |
| IN THE MATTER OF THE ESTATE OF GENEVIEVE DAVISON, DECEASED | |
| Between MARC DOMINIC DAVISON | Plaintiff |
| v | |
| PETER RUSTON KEMPSON (AS ADMINISTRATOR OF THE ESTATE OF GENEVIEVE DAVISON, DECEASED) | First Defendant |
| REMY OLIVIER GALLON DAVISON | Second Defendant |
| PASCALE FRANCOISE ANNE DAVISON | Third Defendant |
---
JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 21-23 March 2017 |
DATE OF JUDGMENT: | 20 April 2017 |
CASE MAY BE CITED AS: | Davison v Kempson & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 173 First revision, 26 April 2017 |
---
TESTATOR’S FAMILY MAINTENANCE – Application under Part IV of Administration and Probate Act 1958 (Vic), s91 - Application by adult son of the deceased – Whether testator failed to make adequate provision for the claimant’s proper maintenance and support – further provision ordered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Isles | Marshalls & Dent |
| For the First Defendant | ||
| For the Second and Third Defendants | Mr Miller |
HER HONOUR:
Introduction
This is a claim under Part IV of the Administration and Probate Act 1958 (‘the Act’). The plaintiff, Marc Davison, is the son of the Deceased, Genevieve Davison.
The second and third defendants are Remy Olivier Gallon Davison and Pascale Francoise Anne Davison respectively. I will use first names to avoid confusion. Remy and Pascale are Marc’s younger brother and sister. They are the Deceased’s surviving children.
The Deceased died intestate on 13 April 2014. In a separate proceeding ( S CI 2014 06557) letters of administration of the Deceased’s estate were granted to the first defendant, Peter Ruston Kempson, on 9 March 2016 (‘the Limited Grant Proceeding’). There was a limited grant of letters of administration ad colligenda bona made to Mr Kempson on 17 March 2015.[1]
[1]Plaintiff’s affidavit sworn 25 August 2016, exhibit MD2.
Mr Kempson has not had an active role in this proceeding. Remy and Pascale oppose Marc’s claim for further provision.
Pursuant to the provisions of Part I Division 6 of the Act, the Deceased’s estate is to be divided equally between the three children. The parties agree that the net value of the estate is approximately $1,453,400. As at the date of trial the estate consisted of a property at 1469 High Street, Glen Iris, Victoria (‘the property’). The property was subsequently sold for $1,700,000. Settlement is due to be effected on 26 June 2017. The Court was informed of the sale by letter dated 29 March 2017 from Mr Kempson.
Marc seeks:
(a) a life interest in the property; alternatively,
(b) a right of residence for five years;
(c) in addition to (b), sale and division of 65% of the net residuary estate.
In light of the previous orders made by McMillan J, it was conceded by Counsel acting for Marc that the orders sought were not possible and that any further provision the Court may order would be by way of a monetary sum. The orders sought by Marc are not possible given the sale of the property.
Evidence filed in this proceeding and the Limited Grant Proceeding was relied upon by the parties.
The evidence relied upon by Marc is:
Part IV proceeding: SCI 2016 01774
(a) Affidavit of Marc Davison sworn 25 August 2016.
Limited Grant Proceeding: SCI 2014 06557
(a) Affidavit of Marc Davison sworn 5 March 2015;
(b) Affidavit of Lily Adophe sworn 5 March 2015;
(c) Affidavit of Robert Donald Briers Forsythe sworn 5 March 2015.
The evidence relied upon by Remy and Pascale is:
Part IV proceeding: SCI 2016 01774
(a) Affidavit of Remy Olivier Gallon Davison sworn 9 September 2016;
(b) Affidavit of Pascale Francoise Anne Davison sworn 9 September 2016;
(c) Affidavits of Peter Ruston Kempson sworn 5 October 2016, 2 March 2017 and 16 March 2017.
Limited Grant Proceeding: SCI 2014 06557
(a) Affidavit of Remy Olivier Gallon Davison sworn 9 December 2014;
(b) Affidavit of Peter Ruston Kempson sworn 15 December 2014;
(c) Affidavits of Michael Ambrose Kelly sworn 10 December 2014, 19 February 2015 and 11 March 2015;
(d) Affidavit of Denise Silvia Cremona-Edwards sworn 19 May 2016.
The parties rely on written submissions.
Background to the Part IV claim
Marc seeks further provision from the Deceased’s estate pursuant to Part IV of the Act. This proceeding is related to the Limited Grant Proceeding brought by Peter Kempson. The two proceedings relate to the same estate. There are issues of fact and law to both proceedings and the witnesses are common to both proceedings. In relation to the Limited Grant Proceeding, an application was made by Mr Kempson for a limited grant of administration on 15 March 2015. The estate’s most substantial remaining asset at the time of the application was the property. Marc has lived in the property since at least 1994 when he returned to live there with the Deceased.
After the Deceased’s death, Marc continued to live in the property. Due to substantial differences between Marc and Remy, on 24 March 2015, Mr Kempson was appointed as independent administrator ad colligenda bona of the Deceased’s estate. The grant was limited for the purposes of, inter alia, ‘cleaning up the property in preparation for its sale by public auction and engaging certain people to ready the property for sale’.[2] The orders made in the Limited Grant Proceeding foreshadowed the sale of the property by Mr Kempson. On 9 March 2016, a full grant of administration was made to Mr Kempson by the Registrar of Probates.
[2]Kempson v Davison [2016] VSC 366 (First Revision: 25 July 2016) [3].
In Kempson v Davison[3] her Honour McMillan J noted that notwithstanding the terms of the limited order, the property had not been sold and Marc refused to vacate it, thereby frustrating any sale by Mr Kempson.[4]
[3][2016] VSC 366.
[4]Ibid [5].
By summons filed 19 May 2016, Mr Kempson sought an additional order to the limited grant that required Marc to provide vacant possession of the property within 28 days of 19 May 2016. Her Honour found that the administration of the estate was being frustrated by Marc’s position, which had forced Mr Kempson to seek the Court’s assistance. It was put on Marc’s behalf that he did not want to sell the property until the determination of this proceeding as he considered that if sold, he would not be able to seek a proprietary interest in the property or a right to purchase it. Her Honour considered that the claim for a proprietary interest in the property ‘seems ambitious in the context of a Part IV claim against his two siblings who have financial need and such a claim would deny his siblings any entitlement to the property or substantially delay their entitlements. The claim to purchase the property seems unrealistic in the context of the defendant’s [Marc’s] assertions that he has limited income and no assets.’[5] Her Honour considered that Marc’s claim for provision over and above his entitlement to one third of the estate on an intestacy had all the hallmarks of an ambit claim and that it was consistent with his resistance to Mr Kempson completing the administration of the estate.[6]
[5]Ibid [13].
[6]Ibid [16].
Her Honour concluded that:
[17]The defendant’s stance in relation to the estate has been difficult from the beginning. It necessitated the appointment of the plaintiff [Mr Kempson] as an independent administrator for the estate. It is now more than two years since the death of the deceased and he continues to frustrate the orderly administration of the estate and cause additional costs to be incurred. The defendant should not be allowed to impede the orderly administration of the estate purely for his own benefit, without regard to the interests of his siblings and the plaintiff’s duty to administer the estate. The continued occupation by the defendant of the property will impede the orderly process of the sale of the property.
[18]The defendant has had notice of this application since 19 May 2016. The application seeks that the defendant vacate the property within 28 days. I am satisfied that the defendant has had sufficient notice of the orders sought. Accordingly, I will order that the defendant vacate the property within 30 days of the date of this order.[7]
[7]Ibid [17] and [18].
Her Honour made orders on 25 July 2016 that Marc vacate the property by 4.00pm on 28 July 2016. Her Honour ordered that Marc bear his own costs of Mr Kempson’s application and that Marc pay Mr Kempson’s costs on a trustee basis, to be paid from Marc’s share of the estate.
On 18 August 2016 her Honour made further orders that Marc vacate the property and provide vacant possession to Mr Kempson forthwith.[8]
[8]The orders of the Honourable Justice McMillan dated 18 August 2016 in proceeding S CI 2014 06557.
Mr Kempson made interim distributions of $155,000 to each of the Deceased’s three children at their request. Marc’s distribution was paid to his then solicitors, Robinson Gill Lawyers, by Mr Kempson as administrator. Initially $130,000 was paid on 25 June 2015 and a further $25,000 on 2 December 2015.[9] Marc denies receiving the whole of his interim distribution.[10]
[9]Affidavit of Peter Kempson sworn 2 March 2017 [9].
[10]Affidavit of Marc Davison in the limited grant proceeding sworn 25 August 2016 [14].
Mr Kempson deposes that he has deducted $64,354.06 from the estate for his legal costs and disbursements, as he has been involved in two proceedings concerning the estate and Marc. He further deposes that he estimates ‘that approximately 51.5% of such costs directly related to the non-cooperation of the plaintiff [Marc] and the taking of enforcement procedures against him’.[11] This estimate is not admitted by Marc.
[11]Affidavits of Peter Kempson sworn 5 October 2016 in the limited grant proceeding [7].
As at 28 November 2016, Marc no longer lived in the property. On 18 November 2016 the Sherriff’s office had a warrant of possession in relation to the property listed in a group of properties in respect to which such warrants would be executed.
On obtaining vacant possession, the administrator arranged for the sale of the property by way of public auction in February 2017. The property was passed in but was subsequently sold.
Part IV proceeding
The proceeding is concerned with s 91 the Act as it was prior to the 2015 amendments effected by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014.
The legal principles are not in dispute in this case. In an application for further provision made under s 91 of the Act, the Court must decide three questions:[12]
[12]Forsyth v Sinclair [2010] VSCA 147 (Neave JA).
1. Did the Deceased, at the date of her death, have responsibility to make provision for the proper maintenance and support of the applicant, Marc Davison?[13]
2. If so, did the Deceased, in the distribution of her estate affected by her will [or, in this case, the intestacy provisions of the Act], make adequate provision for the proper maintenance and support of the applicant?[14]
3. If not, applying the factors in subsections 91 (4)(e)-(o) of the Act, what is the amount of provision (if any) that the Court should order?[15]
[13]Administration and Probate Act 1958 (Vic) s 91(1).
[14]Ibid s 91(3).
[15]Ibid ss 91(1), (4(c)-(d)).
The first question is not in issue; it is conceded that the Deceased had a responsibility to make provision for her adult son, Marc.
The principal issue in dispute is whether, in all of the circumstances of this case, the distribution of the Deceased’s estate by operation of the intestacy provisions of the Act, makes adequate provision for Marc’s proper maintenance and support.
The following principles are relevant to this proceeding:
(a)once jurisdiction to make an order under Part IV of the Act is satisfied, that is, that the Deceased had a responsibility to make provision for the plaintiff, the plaintiff is obliged to show that the testator failed by his or her will to make adequate provision for his or her maintenance and support. The moral duty reflects an obligation to make adequate or sufficient provision measured by what is right and proper according to community standards;[16]
[16]Baxter v Baxter [2014] VSC 377 (‘Baxter’), [52], citations omitted.
(b)the question of what is adequate and proper was dealt with by Dixon CJ in Pontifical Society for Propagation of Faith v Scales:[17]
[17](1962) 107 CLR 9, 19.
It has often been pointed out that very important words in the statute are ‘adequate provision for proper maintenance and support’ and that each of these words must be given its value. ‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should rewrite the law of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court’;
(c)in determining what is adequate and proper, the Court’s approach to quantum of provision is careful and conservative;[18]
[18]McKenzie v Topp [2004] VSC 90 [63].
(d)in order to succeed in an application under Part IV of the Act, there must be a need shown by the plaintiff. This is a relative concept which has to be considered in the circumstances of each case. While the concept of need is relative, it must be shown in order to establish a claim.[19] It is not confined only to economic need.[20] A plaintiff does not need to show necessitous circumstances and were circumstances permitted, a testator should go beyond merely providing for the bare necessities of life;[21]
[19]MacEwan Shaw v Shaw [2003] VSC 318 [50].
[20]Unger v Sanchez [2009] VSC 541 [78].
[21]Blore v Lang (1960) 104 CLR 124, 135 (Fullagar and Menzies JJ).
(e)there is no principle that a testator should treat his children equally.[22] What the Court must do in making orders for provision is to make whatever provision ought to be made, having regard to the factors set out in s 91(4)(e)-(p) of the Act. The Court may assume beneficiaries have adequate resources if they do not provide evidence as to their final position or other claims on the testator’s bounty:
[22]Ibid; Anderson v Teboneras (1990) VR 527, 534.
It has been accepted over many years that, if a beneficiary hears nothing as to his or her financial position or other claims on the testator’s bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than relationship and, in particular, he or she has adequate resources upon which to live.[23]
[23]Anderson v Teboneras [1990] VR 527, 535; Czapp v Cassar and Caldwell [2015] VSC 111 [8]; Borebor v Keane [2013] VSC 35, 65.
(f)the Court has a wide discretion to make appropriate provision when necessary;
(g)Marc bears the onus of proving that the Deceased did not make adequate provision for his proper maintenance and support, on the balance of probabilities;[24]
[24]Baxter, [59].
(h) 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;[25]
(i) 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; and
(j) the relevant factors are those at the time of trial.
[25]Baxter, [62] citations omitted.
The evidence – consideration of the factors identified by s 91(4) of the Act
Marc and Remy gave viva voce evidence. To my observation, Remy gave his evidence in a straightforward and concise manner.
I consider that on some matters Marc could not be considered a reliable witness. I would go as far as to say and agree with Counsel that on some matters Marc was not a truthful witness. For example, Marc gave evidence that:
(a) he paid board, and then he went on to say subsequently that he didn’t pay any board;[26]
[26]T42, L17.
(b) Remy assaulted him;[27]
[27]T54, L26.
(c) he did not and never had a mobile phone, and then produced a mobile phone;[28]
(d) Remy interfered with his mail on a regular basis, an allegation that did not appear in any of his affidavits;[29] and
(e) it was Remy who defaced the auction sign, and he has been known to vandalise things.[30]
[28]T143, LL20-30.
[29]T81, L11.
[30]T156, L16.
Submissions were made by counsel for Remy and Pascale that Marc was a wholly unreliable witness. It was submitted that Marc was prepared to say anything in support of his case, that he made gratuitous ‘vicious’ personal attacks on Remy and Pascale and any person he considered was not helpful to his case. It was submitted that Marc was not a witness of truth and told numerous lies throughout his testimony.[31]
[31]T262, L1.
Marc was an argumentative witness who on the whole was non-responsive to questions put to him in cross-examination. So much so, that I cautioned Marc about not being responsive. On a number of occasions, Marc gave evidence that had never been canvassed in his earlier affidavit material. Troubling was Marc’s lack of candour on some issues, notably, whether he was aware of the orders made by McMillan J in the Limited Grant Proceeding, requiring him to vacate the property so that Mr Kempson could prepare it for sale. In that regard, Marc’s evidence was that he was never advised by his legal advisers to vacate the house.[32] He gave wholly unsubstantiated evidence that Mr Kempson and the sheriff had cost him a job of $900 per week.[33] He said that his former solicitor, Ms LaGreca, advised him that a warrant of possession had been issued but he had never received it. He maintained he had never actually seen the orders relating to the vacation of the property until 20 March 2017 in the witness box. Troubling also was his evidence in relation to the distribution by Mr Kempson of $155,000 to each of the beneficiaries. Marc maintained that Robinson Gill, his former solicitors, had never received the $155,000 distribution made by Mr Kempson in June and December 2015. The evidence is that the distribution was made to Marc and that the funds distributed have been used to pay his legal costs.
[32]T141, L20.
[33]T145, LL28-37.
There were many aspects of Marc’s viva voce evidence which were unsatisfactory. However, on significant issues pertinent to this claim, such as matters concerning Marc’s financial need, his relationship with the Deceased and his role as her carer, on the whole I accept Marc’s evidence. For reasons I will set out later in my reasons, I do not consider Marc’s conduct post the Deceased’s death, and in particular his conduct of this litigation and the Limited Grant Proceeding should be considered disentitling conduct.
There is no doubt that Marc’s conduct has caused unnecessary delay in the preparation and auction of the property. I note that costs orders have been made in the Limited Grant Proceeding. Any conduct affecting that proceeding should be as much as possible quarantined from this proceeding.
I will consider the evidence under the criteria set out in s 91(4)(e)-(o) of the Act, which I am required to consider.
Section 91(4)(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
Marc is the eldest son of the Deceased. He is 56 years old being born on 3 October 1960. Marc resided with his parents for most of his life. He asserts that he lived in the family home since 1994 when he returned to live with the Deceased.
Marc’s evidence is that he lived off and on in the family home. Remy’s evidence is that Marc lived with his parents all of his adult life.[34]
[34]Second defendant’s affidavit dated 9 December 2014 [8].
Their father died in 1994 and Marc’s evidence is that he returned to live with the Deceased to assist in her care. He said that the Deceased ‘was extremely sensitive and had separation anxiety and required significant care’.[35]
[35]Plaintiff’s affidavit dated 5 March 2015, [23].
The evidence is that in or about mid-2000 the Deceased’s eyesight deteriorated and she was certified legally blind in December 2000.[36]
[36]Plaintiff’s affidavit dated 25 August 2016 [38]; exhibit MD5.
Marc’s evidence is that since 2000:
I took extra care of my late mother. The daily routine typically included but was not limited to:
a.reading her academic journal to keep her engaged;
b.prepare food due to her restricted diet;
c.general cleaning and laundry cleaning;
d.arranging appointments;
e.continuing with her rehabilitation program;
f.accompanying and assisting her whenever my late mother had to go out as she did not have a blind dog and my late mother could not safely move around in the house or go outside without my supervision
g.assisting her to attend social activities such as Institute for the Study of French Australian Relations (ISFAR), meeting and seminars at the State Library of Victoria and U3A with Dr Sam Bastomsky initially and later a special group in Orrong Road, Armadale;
h.assisting in preparation of her tax returns and dealing with accountants;
i.assisting her in contractual matters;
j.performing all house chores as my late mother do not have the capability of doing so after she was legally blind;
k.drying her hair;
l.applying cream on her and doing her makeup after the council’s personal carer Mrs Carol came in twice a week or three times in summer to bathe my late mother.[37]
[37]Plaintiff’s affidavit dated 25 August 2016 [40].
Remy’s evidence was that due to the Deceased being declared legally blind after her stroke in 1999, she had limited capacity but was physically strong and could move around the house with a walking stick. He said that consequently the Deceased was very dependent upon those around her, as she could not prepare meals.[38] Pascale left to travel in Europe in 1988 and it appears has lived overseas since. The evidence is that Remy was not living at home with his parents in 1994 when Marc says he returned home to live with the Deceased after their father’s death. In addition, Remy worked in Tasmania from 2003 to 2005.
[38]Second defendant’s affidavit dated 9 December 2014, [10].
Remy’s evidence was that Marc failed to keep the property in a fit state and that it was extremely dangerous for an elderly person. He said that the Deceased suffered several falls due to obstacles throughout the home, placing her in hospital on a number of occasions. These allegations were denied by Marc.
An affidavit was filed by Robert Donald Briers Forsythe sworn 5 March 2015 in the Limited Grant Proceeding. Mr Forsythe had done some maintenance work for the Deceased on a regular basis from 2006. He said that as far as he could ascertain the property seemed structurally sound and there was nothing that could not be relatively easily repaired.
Pascale’s evidence was that from approximately 2000 onwards the Deceased had become increasingly frail and her sight deteriorated until she needed full time care. Pascale noted that the Deceased greatly valued her independence and that she had been on a trip to England in 2007 with Pascale which gave her some relief from what Pascale said was ‘the increasing control the plaintiff sought to exert on every aspect of her [the Deceased’s] life’: for example, what he allowed her to eat or where he would allow her to go. Pascale said that despite the Deceased having sufficient funds, Marc would insist on sending her to see Pascale with a suitcase of inappropriate clothes. Pascale’s evidence was that when the Deceased travelled with her in England she was worried that Marc would be angry if she brought new clothes home.[39] I note that the evidence is of only one visit by the Deceased to see Pascale in 2007.
[39]Third defendant’s affidavit affirmed 9 September 2016 [14].
Mr Michael Ambrose Kelly, Remy and Pascale’s former solicitor, deposed in the Limited Grant Proceeding following the Deceased’s death in an attempt to locate the Deceased’s original will:
[17]On 16 September 2014, I was permitted by the defendant to attend the family home in company with the defendant’s solicitor’s litigation manager, Ms Sally Bakowski, and the defendant for the purpose of searching for the original Will.
…
[19]When I visited the family home on 16 September 2014, I was shocked by what I saw. It was a scene of domestic squalor. The house was squalored, untidy, cluttered and disorderly. It contained vast quantities of hoarded rubbish, refuse, old papers and other worthless items. There were only narrow pathways through the accumulated rubbish. From the appearance and volume, the hoarding had taken place over several years as there were many items that were very old with little or no value.
…
[21]The defendant [Marc] continues to live in the family home and has permitted it to fall into disrepair and squalor.[40]
[40]Affidavit of Michael Ambrose Kelly sworn 10 December 2014 [17], [19] and [21].
Colour photographs taken on 30 November 2016 were exhibited[41] to demonstrate the state of the property at or about November 2016. I do not consider the photographs are consistent with Mr Kelly’s description. In any event, the photographs depict the property in 2016 some four years after the Deceased left the property.
[41]Exhibit D1.
Evidence was given in relation to Marc’s relationship with the Deceased after 23 August 2012 when she was admitted initially to Caulfield Hospital and then to Kalimna House Private Nursing Home (‘Kalimna House’) until her death on 13 April 2014. Importantly there was evidence that while the Deceased was admitted to Caulfield Hospital approximately $500,000 was withdrawn from her CBA bank account to obtain a bank cheque in that amount. In his viva voce evidence, Marc said that Mr Forsythe was the Deceased’s agent who withdrew the $500,000 from the CBA account.[42] Marc maintained that he did not have possession of the cheque and that the $500,000 was withdrawn to stop the ‘State Trustees from getting it’.[43]
[42]T106, LL12-15.
[43]T106, LL16-20; T110, LL22-23.
On 12 April 2013 VCAT ordered that Marc repay the cheque into the Deceased’s account within seven days, which he did.[44]
[44]Second defendant’s affidavit dated 9 December 2014 [11]-[12].
I do not accept Marc’s evidence in relation to the withdrawal of the $500,000 from the Deceased’s bank account. The evidence that Mr Forsythe was the agent who withdrew the money was raised for the first time by Marc under cross-examination. Mr Forsythe’s affidavit makes no mention of withdrawing the money. There is no evidence that Marc intended to dissipate the money for his benefit. However, for whatever misguided reason I accept that Marc withdrew the money and that this was not necessarily in the Deceased’s best interest.
After the Deceased was admitted to Caulfield Hospital and then Kalimna House on 29 August 2012, VCAT determined that the Deceased had a disability and could not make reasonable judgments about her personal circumstances. The VCAT appointed the Public Advocate as her guardian to make decisions about her accommodation and medical care.
Remy’s evidence is that Marc had attempted on a number of occasions to remove the Deceased to another hospital. This in turn led staff at the Caulfield Hospital to apply for an interim guardianship order, which was granted. In August 2012 the matter was referred to VCAT’s Guardianship List where it remained until the Deceased’s death in April 2014. Guardians from the guardianship office of the state of Victoria were appointed formally until 29 May 2013, when VCAT appointed Ms Lorraine Lourenz and Remy as joint guardians. Marc opposed Remy’s appointment as guardian. In July 2013 Ms Lourenz and Remy arranged for the Deceased to be transferred from Caulfield Hospital’s Glenhuntly ward to Kalimna House.
Remy’s evidence was that in early 2014, Kalimna House sought orders from VCAT to restrict Marc’s constant presence at the nursing home. On 2 April 2014, following advice from the resident nurse and staff at Kalimna House and concerns about Marc’s impact on the Deceased’s health, care and nutrition, as guardian, Remy laid down specific guidelines to be followed by Kalimna House staff.[45]
[45]Second defendant’s affidavit dated 9 December 2014 [16], [17], [18], [19] and [22].
I accept that following the Deceased’s admission to Caulfield Hospital and subsequently Kalimna House Marc’s behaviour and conduct towards the Deceased became problematic and inappropriate.
I am satisfied that Marc lived with the Deceased for most of his adult life. After 1994 he remained with the Deceased and it appears it was in large a loving relationship. After the Deceased suffered from a stroke and was declared legally blind, Marc continued to live with her and it was uncontested that she required care and he provided it. There were periods of time when Remy and Pascale were not able to provide any assistance or care for the Deceased. Whatever can be said, there is no evidence that Marc was not available to the Deceased on a daily basis to assist her to live in her home up until 2012. While criticism has been made about the way in which the property was maintained and cared for, I am satisfied that up to 2012 Marc maintained the property in a reasonable state. Mr Forsythe’s evidence was that from 2006 when he was involved with the property there was no evidence of any major disrepair or a description akin to that given by Mr Kelly when he saw the property in 2016. It may well be that the property was left in some disrepair and an undesirable state from the time the Deceased left the home until Marc was required to vacate the property. However, I am satisfied that in the period of time when the Deceased lived in the home with Marc this was not the case.
At no point in time were Pascale or Remy sufficiently concerned about the care provided by Marc to the Deceased to take steps for alternate care for the Deceased and there is no evidence that it was the Deceased’s strong wish or desire to be cared for by anybody else.
Section 91(4)(f) – any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate
The concept of obligation has a wide import and has not been limited in any way by the legislature and subsequent case law.
The Deceased died intestate and accordingly her estate is distributed in accordance with Part 1 Division 6 of the Act, the effect being that her estate is divided equally between her surviving children.
Marc submits that the Deceased’s obligations or responsibilities to him were such that she should not have treated her children equally but she should have provided more for him. Marc’s evidence is that he sacrificed his most productive career years in caring for the Deceased.
In relation to his employment, Marc’s evidence is that:
(a) in or about 1980 he finished secondary school and commenced work immediately;[46]
(b) in 1988 he was retrenched after working for the Australian Press Cutting Agency for six years.[47] He was then ‘fractionally’ unemployed for 18 months after his redundancy and had a series of part time jobs. From 1993 he worked on a casual/commission basis installing outdoor temporary signage as well as being employed on a contract basis as a site specific inventory controller for ‘Formfile ‘in East Kew;[48] and
(c) he worked full time at Formfile from 1998 until he resigned immediately after the Deceased’s stroke in November 1999 in order to take care of her.[49] Since resigning his position at Formfile in 1999 he commenced full time care of the Deceased and did not have any income and commenced receiving a carer’s pension from 2000. His evidence was that from 2000 when he was receiving the carer’s pension he worked up to a limit of 25 hours per week, selling magazines in markets and fairs; selling ‘ephemera to Ephemera Society’ between 2004 and 2007; and he volunteered at various organisations, such as the Royal Victorian Institute of the Blind.[50]
[46]Plaintiff’s affidavit sworn 25 August 2016 [49].
[47]Ibid [50].
[48]Ibid [50].
[49]Ibid [50].
[50]Ibid [54]-[56].
In addition to his contention that he sacrificed his most productive career years in caring for his mother, Marc also asserts that for many years he provided day to day care and support to the Deceased and that the Deceased was very dependent on him, particularly in her later years. His evidence is that he deposited his carer’s pension from Centrelink into the Deceased’s bank account in order for it to be available for her use and benefit and lived off a carer’s supplement payment from Centrelink in the sum of $80 to $120 per fortnight. Marc’s evidence was that the Deceased was concerned about whether he could survive on his own after her death which led to a promise that he could continue to reside in the property after her death.
Marc submits that on the basis that he has no assets, savings and he is totally reliant on welfare for his day to day living expenses and the other reasons set out above, the Deceased had an obligation to have provided more for him.
Marc’s evidence is that he is currently unemployed and has not had a full time job since he resigned from Formfile in 1999. He currently receives Newstart Allowance of approximately $500 per fortnight. His evidence is that he has made and continues to make considerable efforts and attempts to obtain employment since the death of the Deceased. This includes:
(a) attending job provider centres, approaching potential employers on a daily basis;
(b) applying for more than 20 jobs a week; and
(c) attending interviews since December 2015 after being shortlisted as a private carer at Docklands.[51]
[51]Ibid [69].
Remy’s evidence is that Marc lived in the family home all of his adult life, that he has never maintained steady employment and was on Centrelink unemployment benefits for a substantial portion of his life. Remy confirms that following the Deceased’s stroke in 1999 Marc received a carer’s pension from Centrelink.
I accept that Marc was employed in some capacity up until 1999. It is not clear if his employment, particularly after he was retrenched in 1988 from Australian Press Cutting Agency was ever anything more than a casual or commission basis. At its highest he says he was working full time at Formfile from 1998 until he resigned in 1999 following his mother’s stroke. I am not satisfied that Marc gave up his productive working years. He had a chequered employment history up to 1999. I accept however that from 1999 he elected to care for his mother and therefore not work. While Marc asserts that he worked up to 25 hours per week from 1999 he was unable to provide details of the type of work he was engaged in or substantiate the assertion.
The evidence confirms that Marc deposited his carer’s allowance into the Deceased’s account and I accept that he did so on the basis that the Deceased could benefit from the use of the money.
For convenience, I will deal with the evidence in relation to whether or not the Deceased made any promises to Marc at this point in time. In Forsyth v Sinclair[52] Neave JA noted that, whilst Part IV does not give the Court power to make orders to give effect to a deceased person’s intention or promise to benefit someone else, such an intention or promise is a factor not be ignored and may be taken into account under s 91(4)(p).
[52][2010] VSCA 147, [98].
Unless the evidence of any testamentary promise during the Deceased’s lifetime is clear and the terms of the promise are certain, the Court is unlikely to pay too much attention or place too much significance to what is alleged, as a will can readily be changed.[53]
[53]Barnes v Alderton [2008] NSWSC 107 [58] (Young CJ); Stern v Sekers [2010] NSWSC 59 [294]-[295] (Ward J).
Marc’s evidence was that the Deceased mentioned to him a couple of times that she wanted to ensure that he would be looked after following her death and that he should be able to remain at the property.
In his viva voce evidence Marc’s stated that the Deceased wanted him to remain as long as he could in the property as long as he could keep it running[54] and that the Deceased presumed there must be some of the carer’s payment that would enable Marc to at least pay outgoings and some maintenance.[55] He said that the Deceased said to him on several occasions ‘don’t worry, the others have got their own premises’.[56] Marc agreed that he did not stay in the role as the Deceased’s carer on the basis of any promise that was made but that he was reassured by the promise.[57]
[54]T55, LL24-28
[55]T41, LL25-30.
[56]T42, LL7-8.
[57]T43, LL6-11.
On the other hand, Pascale’s evidence was that the Deceased wanted her estate to be shared equally between the three children and that the Deceased ‘remained resolute in this wish throughout her children’s changing circumstances’.[58] Pascale’s evidence was that the Deceased offered her $20,000 to enable her to have a deposit to purchase a home with her then partner and that the Deceased said that she would make an addition to her will to ensure that Remy and Marc would have a payment of $20,000 before the remainder of the estate was distributed to ensure that she remained fair to all of them. Further, Pascale’s evidence is that the Deceased had talked to her about considering whether she should alter her will to make provision for her grandson, Pascale’s son Finn, but concluded that she wanted to remain fair to the three children and not make any additional provision for Finn. Pascale’s evidence is that the Deceased felt that her children had taken different paths in life and made decisions which meant that they were all in different positions in terms of their finances but that she still felt that her children should have an equal share of the estate when she died.[59]
[58]Third defendant’s affidavit affirmed 9 September 2016, [5].
[59]Ibid, [7].
I do not accept Marc’s evidence in relation to the extent to which the Deceased told Marc that he would be looked after or that he could remain in the property after her death. The terms of the alleged promise, if such a promise was made, are not certain.
Section 91(4)(g) – the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject
The parties agree that the value of the estate at the date of trial was approximately $1,450,000.
The sale price of the property ($1,700,000) does not alter the agreed value of the estate of $1,450,000. At trial, an estimated value of $1,700,000 was ascribed to the property (which was the sale price in fact realised), and the parties then agreed to a final figure of $1,450,000 taking into account the parties’ costs, sale costs and commission.
Section 91(4)(h) – financial resources (including earning capacity) and financial needs of the applicant, and any other applicant and/or beneficiary
Marc is 56 years old, single and receives the Newstart Allowance of approximately $500 per fortnight and he has no other income and has no savings.
Marc has a costs order against him in the Limited Grant Proceeding which is estimated to exceed $60,000. While a distribution was made to Marc in the sum of $155,000 by the estate, the evidence is that the entirety of this sum has been used in legal costs.
Marc’s evidence is that he currently lives in the garage of a property.[60]
[60]Exhibit P2.
I am satisfied that Marc has inadequate resources and has a financial need. I am satisfied that despite having made numerous job applications it is unlikely Marc will ever be gainfully employed.
Remy has not disclosed any details of his or his partner’s financial position. As such, the Court is fairly entitled to assume that Remy has no special claim and that he has adequate resources upon which to live.
Pascale is a single mother with a 17 year old son she is still supporting and who is still being educated. Pascale lives in Sussex in the United Kingdom. She and her former partner jointly own their home said to be worth £450,000. There is a mortgage with six years to run but the principal amount owing and the monthly repayments are unknown. Pascale’s evidence is that she will need approximately £200,000 to buy out her former partner in order to retain the home.
Pascale currently works full time as a local authority social worker and has been in the same position for 16 years. Her evidence is that the value of her future pension remains unclear. Pascale does not have any work related benefits. Pascale’s evidence is that her son is entirely dependent upon her and will continue to be as he goes through university. In her affidavit she deposes that she separated from her partner in 2004. Her partner became ill leading to long term unemployment and reliance on benefits, leaving the majority of the cost of her son’s upkeep to Pascale so that she has been unable to accumulate any savings. Her evidence was that her partner has agreed that he will not seek to realise his share of the property until their son turns 18 and completes his sixth form in June 2017. At this point, her partner expects to realise the capital unless Pascale can find the funds to buy him out. Pascale’s evidence is that she has no prospect of doing so without her one third share of the Deceased’s estate.
Pascale’s evidence was not contested. I accept Pascale’s evidence and consider that Pascale has financial need. She is solely responsible for her son’s upkeep and will continue to be for at least the next three years. I also accept that Pascale’s present living arrangement is dependent upon finding an amount of approximately £200,000. There is no evidence of Pascale’s current income, however I note that she works full time as a local authority social work manager and has been in the same position without seeking promotion for the last 16 years. There is no evidence before the Court as to what, if any, superannuation entitlements Pascale has.
Section 91(4)(i) – any physical, mental or intellectual disability of any applicant or any beneficiary of the estate
There is no evidence before the Court that Marc, Remy or Pascale have any physical, mental or intellectual disabilities relevant to the current claim.
Section 91(4)(j) – the age of the applicant
Marc is 56 years of age, his date of birth is 3 October 1960.
Section 91(4)(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
The evidence before the Court[61] is that a total of $195,733.38 being Marc’s Centrelink carer’s pension and supplement was deposited into the Deceased’s bank account.
[61]Exhibit P1.
Remy’s evidence is that the fees at Kalimna House amounted to over $4,000 a month which was approximately $50,000 a year.
Remy’s evidence is that if Marc had not cared for the Deceased he would have organised in-house professional care for her as he wanted the Deceased to stay in the property as long as she wanted. He agreed that any in-house care would have been much more expensive than $48,000 per annum.[62] Remy’s evidence was that neither he nor his partner were in a position to move in and care for the Deceased, and that professional carers would have been provided if Marc was not living with the Deceased.
[62]T227, LL23-24.
Remy’s evidence is that the Deceased did not need assistance between 1994 and 1999 and that she looked after herself.[63]
[63]T220, LL3-5.
I am satisfied that Marc deposited his carer’s allowance and carer’s supplement into the Deceased’s bank account. I am also satisfied that Marc only accessed the carer’s supplement for his day to day needs which was something in the order of $80 to $120 per fortnight.
I am also satisfied that but for Marc’s role as the Deceased’s carer in particular from 2000 to 2012, the Deceased would have required some form of paid assistance to remain home.
Section 91(4)(l) – any benefits previously given by the deceased person to any applicant or to any beneficiary
It appears from the evidence that Pascale was given $20,000 by the Deceased as a deposit to purchase a home with her then partner.[64] There is no evidence in relation to any benefits previously given by the Deceased to Remy or Marc.
Section 91(4)(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 relevant, the extent to which the basis upon which the deceased had assumed that responsibility
[64]Third defendant’s affirmed 9 September 2016, [6].
The evidence is that Marc lived rent free with the Deceased in her home and that the Deceased maintained him financially by use of the Centrelink carer’s allowance paid into the Deceased’s bank account.
Section 91(4)(n) – the ability of any other person to maintain the applicant
No submission was made that any person had any liability to maintain Marc.
Section 91(4)(o) – the character and conduct of the applicant or any other person
Submissions were made on behalf of Remy and Pascale in relation to Marc’s character and conduct and what, if any, regard the Court should have to that conduct in this proceeding.
It is submitted on behalf of Remy and Pascale that Marc’s conduct in not vacating the property following his mother’s death in April 2014 was responsible for the delay in this proceeding and in the Limited Grant Proceeding, that his conduct has led to unnecessary costs and is in contravention of the Civil Procedure Act 2010. It is submitted that the said breaches of the Civil Procedure Act should be considered under s 91(4)(o) as a factor in the exercise of the Court’s discretion not to allow further provision to Marc.
It is submitted that the Court should look at Marc’s character and conduct before and after the date of the Deceased’s death, and ‘that the conduct of the plaintiff in both proceedings has not been either good or noble and it would be an injustice if it were not taken into account’.[65]
[65]Defendants’ written submissions dated 23 March 2017, [92].
The evidence relied on by Remy and Pascale in relation to Marc’s misconduct before the Deceased’s death relates to the withdrawal of the $500,000 from the CBA account to obtain a bank cheque in that amount. It is submitted that the Deceased was frail, elderly and vulnerable and could not have obtained any benefit from that transaction. Reference is made to the VCAT order dated 12 April 2013 ordering Marc to repay the cheque into her account, which he did. It is submitted that the Court should also have regard to the circumstances of the appointment of the Public Advocate as the Deceased’s guardian in August 2012 to make decisions about her accommodation and medical care.
As I have said, much was said about Marc’s conduct after the date of the Deceased’s death. This includes his conduct in relation to the property; delays in the inspection of the property by the defendants’ solicitor Mr Kelly; opposition to the sale of the property; failure to maintain the property; and failure to pay rates. The evidence is that there is currently $4,411.98 in outstanding rates on the property.[66] I accept Marc’s evidence that he endeavoured to make some payments to the rates by way of small instalments as he was financially able to.[67] Reference is also made to Marc’s failure to pay rent for his occupation of the property from 13 April 2014 until being evicted, a period of two years and six months. It was submitted that in that period the estate has been denied rental income in the sum of approximately $76,000.[68]
[66]Affidavit of Peter Ruston Kempson sworn 16 March 2017, [11].
[67]Exhibit P6.
[68]Defendants’ written submissions dated 23 March 2017, [106]-[107].
Most notably however, submissions were made in relation to Marc’s failure to obey Court orders being disentitling conduct which should be taken into account in the exercise of the Court’s discretion as to whether or not to provide further provision.
I do not accept the submissions made on behalf of Remy and Pascale that Marc’s failure to obey Court orders is a matter that I should take into consideration for the purpose of this proceeding. In McKenzie v Topp[69] Nettle J said at [39]:
It appears that the requirement to have regard to character and conduct in s. 91(4)(o) of the Act now stands in place of the former provisions of s. 96(1) (which provided that if the character and conduct of the plaintiff were such as to disentitle that person to relief the court might refuse to grant an order). I take it therefore that the sort of character and conduct to which one is to have regard for the purposes of s. 91(4)(o) is limited, as it was under the former s. 96(1), to misconduct towards the testatrix or which shows that the plaintiff’s need is the result of his own default.[70] [Emphasis added]. It may be that there is a difference in the onus of proof as between the new s. 91(4)(o) and the former s. 96(1). Under the former section, disentitling conduct was an exception to an entitlement and so it might be supposed that the evidential onus lay upon those who asserted disentitling conduct to prove its existence. Now that the court is directed to have regard to the subject in determining if there is jurisdiction to make an order, it would seem to follow that the onus of proof lies upon the plaintiff. But practically speaking it does not make a great deal of difference. Until and unless evidence of disentitling conduct is adduced, there will be none to consider.
[69][2004] VSC 90.
[70]Re Sinnott [1948] VLR 279, 281; Re Paulin [1950] VLR 462, 473; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 156.
Further, and more recently, in Christidou v Chris[71] McMillan J stated that post-mortem conduct was not relevant:
[57]In relation to Mr Spaulding’s submissions regarding the character and conduct of Natasa after the death of the deceased, in my view, such matters are not relevant in considering the task that must be undertaken by the Court.
[71][2012] VSC 626.
This is a case based on the Deceased’s intestacy – the operation of the law determines the destination of her estate so character and conduct is irrelevant for that purpose.
I consider that any conduct postdating the Deceased’s death may be relevant only to the issue as whether it demonstrates that Marc’s need is as a result of his own default, or whether it has caused a negative impact of the value of the estate.
Marc’s withdrawal of the $500,000 from the Deceased’s bank account with no adequate explanation is of concern but ultimately had no real impact on the Deceased or the estate. Equally, Marc’s conduct resulting in Caulfield Hospital staff making an application for a guardianship order caused inconvenience to the Deceased’s then carers, but there is no evidence that it had a detrimental effect on the Deceased or the estate. I am satisfied that there is no evidence which points to Marc’s conduct up until 2012 which would be considered of a nature and type to in some way disentitle him from further provision.
There is no evidence before the Court that Marc’s conduct after the Deceased’s death caused a decline in the value of the estate. There were three valuations provided to the Court in relation to the property as follows:
(a) 30 June 2015 - $1,800,000
(b) 17 January 2017 - $2,300,000
(c) 15 March 2017 - $1,700,000
If such valuations are to be accepted, the value of the property clearly increased between 30 June 2015 and 17 January 2017. There is no evidence that the decrease in value of $100,000 between 17 January and 15 March 2017 was due to Marc’s conduct. In any case, Counsel for Remy and Pascale objected to the valuation of 15 March 2017, which was not tendered but rather provided to the Court as an aide memoire. I do not accept that the conduct complained of by Remy and Pascale negatively impacted the value of the estate.
Section 91(4)(p) – any other matter the Court considers relevant
I have discussed Marc’s evidence in relation to the Deceased’s alleged promise that he should be able to continue to live in the property after her death at [65] to [70].
Marc’s Submissions
I have addressed the parties’ submissions in detail in the summary of the evidence. I will briefly set out the parties’ submissions as they are relevant to the Court’s task under s 91 of the Act.
As to s 91(4)(f), it was submitted that the Deceased’s obligations or responsibilities to Marc, as a just and wise mother, were such that she ought not to have treated her children equally, but should have provided more for Marc.[72]
[72]Plaintiff’s Outline of Submissions dated 23 March 2017 (Plaintiff’s Outline of Submissions), 9.
As to s 91(4)(h), it was submitted that:
a) Marc has a costs order against him reflecting his fault in opposing prior court orders and therefore should not be again repeated in alleging disentitling conduct;[73] and
b) Marc has a bank account with approximately $2,000 in it, he has seen none of the interim distribution made to him as it has been applied towards legal fees, and he has no tertiary qualifications.[74]
[73]Ibid, 11.
[74]Ibid.
As to s 91(4)(m), it was submitted[75] that the Deceased had, for many years, assumed the responsibility of providing rent free accommodation for Marc, and maintained him financially by use of the Centrelink pension that was paid into her bank account.
[75]Ibid, 13.
As to s 91(4)(o), it was submitted that the conduct of Marc in not vacating the property after the Deceased died does not disentitle Marc to further provision, but rather evidences his need, dependency and poverty.[76] It was submitted that Marc was dependant on the Deceased for accommodation. The promises he had and the fact that he felt that the property was his home to some extent formed a proper basis for him to continue to reside there.[77] It was submitted that Marc had legal advice to suggest his claim would be diminished if he wasn’t living in the property, and therefore Marc held that view.[78] It was submitted that the defiance of the order was not contumelious.[79]
[76]Ibid, 14.
[77]T13, LL23-26.
[78]T296, LL23-25.
[79]T297, L4.
It was submitted that Marc’s needs have remained constant before and after the Deceased died; he had very little in the way of assets before the Deceased died, and that position prevailed after she died.[80] At best, Marc’s attitude after the Deceased died may have been irritating to estate administration, but Marc genuinely believed that he was entitled to remain in the property.[81]
[80]Plaintiff’s Outline of Submissions, 15.
[81]Ibid, 16.
As to s 91(4)(p), it was submitted that the Deceased made a number of promises to Marc about how her estate was to be left, and she was anxious to ensure that Marc could remain in the property for as long as he wished.[82] Marc conceded that he did not have a proprietary estoppel claim,[83] however it was submitted that it is relevant as to the fact that Marc lived in the property not just on a hope, but on the basis of some sort of representation that he would have been taken care of down the track.[84]
[82]Ibid.
[83]T13, LL18-19.
[84]T19, LL25-28.
It was submitted that the Court should not reject Marc’s evidence, however even if the Court finds Marc as an unsatisfactory witness, he still succeeds on the central features of the case, particularly on the basis of the immutable facts which are put forward by Remy,[85] that Marc has never worked, his carer’s pension was paid into the Deceased’s bank account, and dissipated as part of the first distribution.[86]
[85]T277, LL26-31.
[86]T278, LL2-5.
Remy and Pascale’s submission that because the interim distribution of $155,000 has been lost and because Marc has engaged in misconduct in the course of the litigation, he should be punished and not given further provision, was rejected on Marc’s behalf. It was submitted that this is contrary to the spirit of the Act, in circumstances where the Act is benevolent in its operation.[87]
[87]T280, LL12-18.
Counsel for Marc submitted that this may be a case in which it is appropriate for the court to order the imposition of a testamentary trust to alleviate any concern on the part of the Remy and Pascale that Marc may lose any further distribution. Counsel for Marc did not put this on instructions, but rather as an option to facilitate the just and efficient resolution of a matter in accordance with his obligations under the Civil Procedure Act.[88]
[88]T295, LL22-24.
As to costs, it was submitted that Remy and Pascale’s costs should not be paid as they are duplicated by the executor’s costs, save for the costs associated with the briefing of Counsel.
Remy and Pascale’s Submissions
Remy and Pascale’s submissions focused largely on Marc’s alleged misconduct before and after the Deceased’s death, and in particular, his conduct in the Limited Grant Proceeding and in failing to obey Court orders. It was submitted that it is open to the Court to have regard to Marc’s misconduct, both before and after the Deceased’s death[89] both for the purpose of determining whether any further provision should be made, and in determining any costs orders.
[89]Defendants’ Submissions dated 23 March 2017 (Defendants’ Submissions), [30].
The threshold submission was that the one third amount that Marc will receive makes adequate provision for his proper maintenance and support, and that no further provision should be ordered.[90]
[90]Ibid, [28].
As to Marc’s alleged misconduct before the Deceased’s death, Remy and Pascale relied on the withdrawal of $500,000 from the Deceased’s bank account.
As to Marc’s conduct after the Deceased’s death, the following was relied upon as alleged misconduct:
a) Marc opposed the appointment of the administrator. There were two aborted mediations because either Marc wouldn’t turn up or said he didn’t have funds to permit him to turn up;[91]
[91]T243, LL21-23.
b) opposition to the sale of the property:
i. Marc has steadfastly opposed the sale of the property and has done everything in his power to frustrate and delay same;[92]
[92]Defendant’s submissions, [101].
ii. the Forthcoming Auction signs on the fences of the property were taken down and removed prior to the auction by a person unknown;[93] and
[93]Ibid.
iii. the auction sign was defaced by a person unknown; the agent’s contact details and the auction date were deleted.[94] It was submitted that it is open to the Court to draw an inference that the only person interested in sabotaging the auction sale was Marc, given his continuing failure or refusal to vacate the property;[95]
[94]Ibid.
[95]Ibid, [116].
c) failure to maintain the property:
i. Marc allowed the property to fall into disrepair;[96]
[96]Ibid, [102].
ii. Marc did nothing to build up the assets of the estate;[97] and
[97]Ibid, [103].
iii. the administrator was required to hire skips and an employee to remove the accumulated rubbish and junk from the property, which was a further expense to the estate;[98]
[98]Ibid, [104].
d) failure to pay rates;[99]
e) failure to pay rent;[100] and
f) failure to obey court orders. It was submitted that there has been deliberate defiance of court orders by Marc who has wilfully failed to vacate the property. The failure was not accidental or through inadvertence; it was not innocent or unintentional failure to comply; it was not caused by Marc’s lack of knowledge of the terms of the Court Orders[101]
[99]Ibid, [105].
[100]Ibid, [106], [107].
[101]Ibid, [109]-[110].
It was submitted that Marc was a wholly unsatisfactory witness[102] in the following circumstances:
[102]T261, L21.
a) he was prepared to say anything to support his case;[103]
[103]T261, L22.
b) he descended into vicious, nasty, hostile and personal attacks on the Defendants;[104]
c) he was not a witness of truth and he made a number of lies;[105] and
d) Marc gave argumentative evidence, and the Court gave Marc numerous warnings about not answering questions, or giving abusive answers.
[104]T261, LL23-25.
[105]T262, LL1-2.
It was submitted that Marc’s demeanour in court (which it was submitted should be taken into account) is sufficient that the Court would support a finding that he was an unreliable witness.[106] In this regard, it was submitted that:
[106]T265, LL13-15.
a) Marc spoke with a deliberately soft voice on numerous occasions, however when he became agitated, there was no problem in anyone hearing him;[107]
b) Marc gave rambling and totally disjointed evidence;[108] and
c) Marc was disputive.[109]
[107]T265, LL18-24.
[108]T265, L26.
[109]T265, L29.
It was submitted that by Marc’s conduct, he has contravened a number of overarching obligations prescribed by the Civil Procedure Act 2010.
It was submitted that an additional award from the Court shouldn’t be made having regard to all the circumstances; it is an unmeritorious claim and Marc is the architect of his own misfortunes. Marc’s conduct since the death in April 2014 is largely responsible for the protracted and expensive litigation, and Marc should not be rewarded with further provision given his breaches of the Civil Procedure Act.
While both parties reserved their rights to make further costs submissions, Counsel for Remy and Pascale submitted that in all of the circumstances, it is open to the Court under Part 2.4 of the Civil Procedure Act 2010 to find that Marc has contravened the overarching obligations.
It was submitted that Marc should not receive any further amount for his costs and if there is to be a costs penalty that Marc should bear his own costs having regard to the history of legal practitioners who have been retained/dismissed.[110] It was submitted that the size of Marc’s costs are neither reasonable nor proportionate having regard to the issues in dispute and the size of the estate.[111]
[110]T258, LL7-12.
[111]T258, L30- T259, L2.
Conclusion
Under the rules of intestacy each of the Deceased’s children is entitled to a third of the estate. Given the current value of the estate, this means that each is entitled to approximately $638,000.
The community does not expect a parent to look after his or her child for the rest of the child’s life in retirement. I am not satisfied that the Deceased was sufficiently concerned that the property was to be for Marc’s use for the rest of his life or that promises were made to that effect by the Deceased to Marc. In determining how much provision to award, if any, the Court is exercising a discretion.[112] The authorities are clear that there is no presumption that beneficiaries in the same ‘class’ should be treated equally, and the circumstances of each case must be considered by the Court.[113] In determining what is adequate provision for an applicant’s proper maintenance and support, the Court is entitled to allow for contingencies that are no more than mere possibilities. The question of needs should not be too narrowly focussed.
[112]Singer v Berghouse (No 2) (1994) 181 CLR 201, 211.
[113]Baxter v Baxter [2014] VSC 377, [102]; Re Hodson (1955) VLR 481, 485; Niehoff v Niehoff (1995) 2 VR 356, 371; Blair v Blair [2002] VSC 95, [81]; Phillips v James [2014] NSWCA 4.
I am satisfied on the evidence that Marc was a responsible and good son to the Deceased. I am satisfied that from 1994 to 2012, Marc provided necessary care and assistance to the Deceased to enable her to live at home. From 2000 the Deceased was described as legally blind and on Remy’s own evidence needed the assistance of others to live independently. While Marc lived rent free with the Deceased from 2000 to 2016 while in receipt of the carer’s pension he pooled it with the Deceased’s finances. There is no evidence that Marc used unnecessarily or capriciously any of the Deceased’s finances. To the contrary, it appears if anything that Marc led a very frugal existence and continues to do so.
While Marc did not produce any evidence from an accountant or bank accounts of any significant documentary evidence to substantiate his financial position, I am satisfied that he has a real financial need. His current living arrangements are in the garage at the back of a property, paying rent of $120 per week. Marc’s financial position has deteriorated since the Deceased’s death in large part due to his own conduct, in particular his conduct in the Limited Grant Proceeding. Marc received a distribution of $155,000 from the estate. Regrettably it has been used to pay for legal expenses. This is no one’s fault but Marc’s.[114] Having said that, even with the $155,000, Marc would have had financial need. He does not have any savings and it is unlikely he will be employed in the future. This would have been the case whether or not he used the $155,000 on legal fees.
[114]Kempson v Davison (2016) VSC 366 (First Revision 25 July 2016) at [17]-[19]
In my view, Marc’s current financial situation is such that even with his one third entitlement of the estate he has only limited financial buffer against future financial contingencies.
In this case, the estate is not large and it is not small. In my view, the pertinent facts in this case include Marc’s financial need, the size of the estate and the fact that there is a competing claim from Pascale and that these should be taken into account in assessing what is adequate provision for Marc.
Regrettably, if Marc had not been required to use the $155,000 on legal costs and he received his one third of the estate as he is entitled to under the laws of intestacy and which was never opposed by Remy and Pascale, Marc’s share of the estate would have been approximately $638,000 (($1,450,000/ 3) + $155,000). As such his financial situation would have been such that he had some buffer against financial contingencies.
I consider that while Marc has financial need, his financial situation has been made worse by his conduct in the Limited Grant Proceeding, resulting in the costs order against him and the accumulation of his legal fees. This is a factor which must be balanced against the remaining criteria in s 91(4)(e)-(o). What cannot be underestimated is Marc’s role not just as a dutiful child to the Deceased, as I consider Remy and Pascale were equally dutiful and loving children, but his role as the Deceased’s carer from 2000 to 2012, which enabled her to live at home even though she was elderly and visually impaired. Marc may have lived with the Deceased rent free from 1994, but he contributed to the household finances by depositing all his available income, the carer’s pension and the carer’s supplement into the Deceased’s bank account.
In my view:
(a)Marc had a long and loving relationship with the Deceased, and from at least 2000 to 2012 he performed a role of the Deceased’s carer, providing her with daily care enabling her to live in her home;
(b)Marc has limited financial security for the future;
(c)Marc is unemployed with no income;
(d)Marc has survived on Centrelink benefits and will continue to do so in the future; and
(e) Marc’s conduct in the Limited Grant Proceeding has impacted on his financial situation. In this context his conduct is relevant.
Given all the circumstances of this case, including Marc’s relationship with the Deceased, his financial need, the size of the estate, Pascale’s financial need, I consider further provision should be made for Marc. To that end, I consider that Marc is entitled to a legacy of $125,000 and then the remainder of the estate should be divided equally between Marc, Remy and Pascale. I shall hear the parties on the form of orders and as to costs.
8
0