Doran v Forde (Ruling)

[2016] VCC 347

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

FAMILY PROPERTY LIST

Case No.  CI-15-06095

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

AND

IN THE MATTER of the Will and Estate of EDWARD CHARLES DORAN, deceased

VIVIENNE SANDRA DORAN	Plaintiff/Applicant
v
DONALD FRANCIS FORDE (as Executor of the Will of EDWARD CHARLES DORAN, deceased)	Defendant/Respondent

---

JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2016
DATE OF RULING:	7 April 2016
CASE MAY BE CITED AS:	Doran v Forde (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 347

RULING
---

Subject:  TESTATOR’S FAMILY MAINTENANCE

Catchwords: Application for summary dismissal - whether plaintiff is an “eligible person” as defined in s90 of the Administration and Probate Act 1958 – relevance of Relationships Act 2008 – plaintiff and deceased separated - plaintiff continued to provide moral and practical support – whether property settlement just and adequate

Legislation Cited:     Civil Procedure Act 2010, s62; Administration and Probate Act 1958, s90; Relationships Act 2008, s35(2); Family Law Act 1975

Cases Cited:Schmidt v Watkins [2002] VSC 273; Galvin v Semkiw [2013] VSC 142

Ruling:  The defendant’s application dismissed with costs.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Applicant	Mr A Hands	Watkins Boag O’Connor & Dunne
For the Defendant/Respondent	Ms J Croxford	Walsh Johnston & Co

HIS HONOUR:

Introduction

1       The plaintiff filed an Originating Motion on 22 December 2015 claiming that the deceased was in breach of his moral duty to make provision for her maintenance and support out of his estate.

2       The deceased died, leaving a will in which he left his entire estate to James Thomas Lawler and Donald Frances Forde (“Forde”).  Forde is the executor and trustee of the deceased’s estate.

3 Forde has made an application to have the plaintiff’s proceeding dismissed on two bases. The first is that she is not an “eligible person” as defined in s90 of the Administration and Probate Act 1958, and the second is that she has no reasonable prospect of succeeding with her claim which entitles the defendant to judgment pursuant to s62 of the Civil Procedure Act 2010.

4       Ms J Croxford of Counsel appeared for the defendant/applicant and Mr A Hands of Counsel appeared for the plaintiff/respondent

Summary of the relevant facts

5       The evidence before me comprised:

·The affidavit of the plaintiff, sworn 21 December 2015, with six exhibits.

·The affidavit of Neil Willis Johnston, legal practitioner and solicitor for the defendant, sworn 1 March 2016, with one exhibit.

6       The following is a short summary of the relationship of the plaintiff and the deceased, upon which the plaintiff says that she is an “eligible person”, and that the deceased was in breach of his moral duty to make provision for her:

·        The plaintiff was born in July 1939 and is now seventy-six years of age.

·        The plaintiff and the deceased married on 4 April 1959.  They separated after six months.  They divorced about five years later.

·        The plaintiff remarried in October 1966.  There were three children born of that marriage.

·        The plaintiff and her second husband divorced in September 1987.

·        The plaintiff and the deceased remarried on 9 September 1989.

·        The plaintiff and the deceased separated in 1995.  They separated under the one roof in 1995 and formally separated in 2000.

·        Neither the plaintiff nor the deceased sought a divorce.

·        The plaintiff and the deceased obtained Orders of the Family Court dated 12 July 2000.  The deceased retained the matrimonial home, and in consideration he paid $70,000 to the plaintiff.

·        The plaintiff and the defendant maintained a cordial relationship.  The plaintiff points to examples of the extent to which they maintained such a cordial relationship:

§    In 2001, the deceased broke his collarbone.  He was hospitalised.  The plaintiff visited him.  She provided him with clean clothes and underwear.  After he was discharged from hospital, she stayed at the former matrimonial home and looked after him and took him to follow-up medical appointments.

§Between 2004 and 2006, the plaintiff visited the deceased regularly.  They went to lunch together at a local RSL.  Additionally, the plaintiff provided him with stews and casseroles.

§From 2006, the plaintiff visited the deceased at their former matrimonial home on weekends, though I assume not every weekend.  She cooked him stews, scones and bread-and-butter puddings as a change from the Meals on Wheels on which he was reliant.

§During the deceased’s final illness, the plaintiff made attempts to catch up with him to celebrate his birthday.  She was unable to do so because he had passed away.  She was upset that she did not have an opportunity to care for and support him.  There was no funeral.  She placed an obituary notice in a newspaper on 2 May 2015 in remembrance of him.

7       In addition to the foregoing, the plaintiff set out her present financial position.  She used funds from the sale of her home to build a granny flat at the rear of her daughter’s property in Montmorency.  There is no other evidence of her source of income.  The deceased’s estate comprises the former matrimonial home which the plaintiff believes was recently sold for $860,000, less a mortgage of about $142,149.10 and cash of in excess of $7,500.

Is the Plaintiff an “eligible person”?

8       There are two definitions of “eligible person” to which I was taken.  The first relates to a spouse or domestic partner.  It is expressed in the following terms:

“(a)a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death.”[1]

[1]Section 90 of the Administration and Probate Act 1958

9       “Spouse” is defined in s3(1) in the following terms:

“spouse of a person who dies means a person who is married to the person at the time of the person’s death.”

10      The plaintiff remained married to the deceased.  Therefore, she is a “spouse” of the deceased.

11 The defendant submitted that to be a “spouse” and to be “married” implies much more than the mere fact of a subsisting marriage. It was submitted that I needed to examine the actual relationship between the plaintiff and the deceased to determine whether it had, by analogy, any of the characteristics in the determination of whether a domestic relationship exists or not in s35(2) of the Relationships Act 2008. If I undertook that analysis, then I should conclude that the plaintiff and the defendant, whilst “married” as a matter of law, were not “married” as a matter of fact. Therefore, the plaintiff was, in actual fact, a “former spouse” caught by s90(e) of the definition of “eligible person”.

12      Furthermore, if I was so persuaded, then because the plaintiff and the deceased had brought a proceeding pursuant to the provisions of the Family Law Act 1975, the plaintiff is precluded from making this claim.

13      The submission must fail for one very basic and obvious reason.  I am not persuaded that I should look beyond the definition of “spouse”.  The legislature intended that what I must do is to firstly ask the question whether the plaintiff is an “eligible person”.  If the answer is yes, then the plaintiff’s claim falls to be determined by reference to the relevant provisions under Part IV of the Administration and Probate Act 1958.

The Family Law settlement

14      Additionally, the defendant submitted that there are two further bases upon which I should dismiss the plaintiff’s claim.  Both are based upon the proposition that the plaintiff’s claim has no reasonable prospects of success.

15      The first submission is that the plaintiff should be characterised as more of a “friend” providing assistance to the deceased.  The defendant relied upon Schmidt v Watkins.[2]It is true that a business relationship or a similarly analogous relationship would not give rise to a moral duty when compared with, for example a spousal relationship or a domestic relationship.

[2][2002] VSC 273

16      However, the submission must also fail for some very basic and obvious reasons.  Firstly, the plaintiff is an “eligible person”.  Whilst this does not establish that the deceased was in breach of his moral duty by not making provision for her maintenance and support, it certainly raises the question of whether the quality of their relationship was such that the deceased owed her such a moral duty, and then whether he was in breach of it. 

17      It is not my intention to compromise the ultimate determination of this matter at trial, but it may be that the trial judge is persuaded that although the plaintiff and the deceased separated in 2000, there was a quality in their subsisting relationship which gave rise to a moral duty on the part of the deceased.  This may be so, given the fact that they remained married, that the plaintiff continued to provide him with moral and practical support, and that she is a person with modest means.  If that were the evidence, and it seems to me that is where the plaintiff’s evidence is heading, then that establishes a case which the defendant must answer.

18      The second submission is based upon the Family Law settlement.  I was referred to the judgment of Emerton J in Galvin v Semkiw.[3] Her Honour reviewed a number of authorities which stand for the proposition that in accordance with general community standards where a spouse has been accorded all rights under a property settlement and does not have any continuing entitlement to maintenance, then the spouse “is not generally regarded as a natural object of testamentary recognition”.[4]

[3][2013] VSC 142

[4]Galvin (ibid) at paragraphs [21]-[27], and in particular at paragraph [26]

19      However, where the plaintiff can point to circumstances which demonstrate that the settlement was not just and adequate, then that might constitute an exceptional circumstance which would distinguish it from the public policy reasoning that there be finality in litigation between the spouses where they enter into a settlement agreement at arm’s-length, with legal advice and with the approval of the Family Court.

20      In the case before her Honour, the plaintiff alleged that she was frightened of the deceased, and that the settlement agreement did not reflect her contribution to the matrimonial property.  It is important to note that her Honour considered that whether that was so or not was a matter for evidence.[5]

[5]Galvin (ibid) at paragraph [29]

21      In this case, the plaintiff contends that the settlement was not just and adequate.  By implication, she accepted less, on the footing that the deceased would make provision for her through his will.  She described that position as an “express understanding” between them.  If that evidence is accepted, then it may well constitute an exceptional circumstance.

22      What further distinguishes the plaintiff’s case from the cases reviewed by her Honour is that this is not merely a case where there was a property settlement after which the parties went their separate ways in all respects.  Here, the plaintiff maintained what might be characterised as a relatively close relationship with the deceased.  The significance of this consideration will require a close analysis of the cases reviewed by her Honour in the context of the peculiar facts of the plaintiff’s case. 

23      If the plaintiff satisfies the Court that the basis upon which the settlement was achieved was not just and adequate, the next question will be whether the evidence satisfies the Court that the deceased owed a moral duty which he breached, and whether the plaintiff is in need, and then ultimately what provision, if any, should be made for the plaintiff’s maintenance and support. 

24      The evidence before me does not permit a proper investigation into all of these questions, therefore it would be inappropriate for me to dismiss the proceeding summarily, as I cannot be satisfied that the plaintiff’s claim has no real prospect of success. 

Conclusion

For the reasons I have set out above, I order that the application made by the defendant be dismissed with costs.  I propose to order that the parties attend a mediation by 29 April 2016 to determine whether there is a basis upon which this proceeding can be resolved, and failing that, I will expect the parties to submit appropriate interlocutory orders for my consideration, and I will then provide the parties with a date for trial prior to 4 July 2016.

- - -