Draskovic v Bogicevic
[2007] VSC 36
•1 March 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 8873 of 2005
PART IV OF THE Administration and Probate Act 1958 (Victoria)
IN THE MATTER of the Will and Estate of Janko Polovina (deceased)
BETWEEN
| MARA DRASKOVIC | Plaintiff |
| v | |
| BRANKO BOGICEVIC (who is sued as Executor of the estate of Janko Polovina (deceased)) | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 26 February 2007 | |
DATE OF JUDGMENT: | 1 March 2007 | |
CASE MAY BE CITED AS: | Draskovic v Bogicevic | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 36 | |
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TESTATOR’S FAMILY MAINTENANCE – Claim by deceased’s former wife – Short marriage – Divorce 14 years before testator’s death – Testator paying maintenance to date of death – Whether testator had responsibility to provide for plaintiff’s proper maintenance and support – Administration and Probate Act 1958 s.91.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.P. Newton | Kennedy Guy |
| For the Defendant | Mr G.K. Moore | Baird and McGregor |
HIS HONOUR:
The plaintiff is the former wife of Janko Polovina (“the deceased”), who died on 28 April 2005. At the time of his death the deceased had an estate which, for probate purposes, was valued at $590,777. By his will dated 15 March 1996, the deceased appointed the first defendant, his uncle, as his executor, and left his entire estate to the first defendant. The plaintiff claims provision out of the estate of the deceased pursuant to Part 4 of the Administration and Probate Act 1958 (“the Act”).
The deceased was born on 26 June 1944 in a German concentration camp in Hungary. His parents were of Serbian origin. After the Second World War the deceased and his parents were reunited in Serbia. In 1968 the defendant and his wife visited the former Yugoslavia. They encouraged the deceased to join them in Australia. As a result the deceased emigrated to Australia in 1969. He was then single. For the next three and a half years he lived with the defendant and his wife at their home in Ballarat. In the early 1970s the deceased moved to Sunshine. For a time he was employed with Dunlop, and then subsequently he worked as a machine operator with Olex Australia Pty Ltd. He worked with that company for about 30 years until his death. In 1981 he purchased land in Sunshine, and five years later built his house on that land.
After his migration to Australia the deceased returned to the former Yugoslavia on a number of occasions to visit his brother and his family. On one such visit, in April 1989, he met the plaintiff. The plaintiff had been born in Serbia in February 1957. She was previously married, but divorced, and had a daughter who was then aged ten years. The plaintiff and the deceased married in Serbia in January 1990. The plaintiff was unable to obtain the necessary documentation to accompany her husband to Australia. Ultimately she came to Australia in December 1990, but her daughter remained in Yugoslavia.
When the plaintiff came to Australia she commenced to live with the deceased in his home in Sunshine. The marriage was evidently an unhappy one, and was only of short duration. In April 1991 the plaintiff moved out of their home in Sunshine. On 7 May 1992, on the application of the deceased, an order was made by the Family Court for the dissolution of the marriage. Subsequently the plaintiff applied for an order for maintenance from the deceased. On 28 October 1992 an order was made by the Magistrates’ Court at Melbourne that the deceased pay her $50 per week maintenance. Pursuant to that order the deceased paid the plaintiff maintenance up until the time of his death. At that time the payments, amounting to $67.65 per week, were deducted as a child support deduction from the deceased’s pay in the employment of Olex Australia Pty Ltd. In her affidavit in support of the application the plaintiff states that she used the maintenance moneys to assist her daughter in Serbia to the best of her ability. Her daughter married some three years ago.
After the plaintiff and the deceased separated the plaintiff consulted a travel agent to seek help to return to Serbia. However the travel agent advised her that since she had a permanent residence visa she should remain in Australia. She acted on that advice. Subsequent to the end of her marriage to the deceased the plaintiff commenced to live in a de facto relationship. That relationship lasted from 1992 until 1997. Two children were born of that relationship, a daughter who is almost 14 years of age, and a son aged 11. The relationship terminated when the plaintiff’s de facto husband left her with the children. The plaintiff has continued to maintain the children since that time.
After the plaintiff and the deceased separated, the plaintiff sometimes saw him at church. On occasions they would greet each other, and on other occasions not. The plaintiff states in her affidavit that because of the deceased’s behaviour during the marriage she was always a little nervous about talking with the deceased. About four to five months before the deceased’s death she met him by chance at Sunshine Plaza Shopping Centre, and they had a cup of coffee together for about 20 minutes.
After his separation and divorce from the plaintiff, the deceased had no further partnerships or marriages. In his affidavit, the defendant states that he always maintained a good relationship with the deceased. Although the deceased was a loner, the defendant and he went fishing and camping regularly, often travelling together to the Grampians for those purposes. The deceased and the defendant did not visit each other’s homes on a regular basis. However, the deceased did visit the defendant’s family’s home four or five times each year. In addition, they frequently spoke together by the telephone. The defendant states that he and the deceased were friends.
Probate was granted of the will of the deceased on 15 June 2005. The inventory of assets and liabilities filed by the defendant disclose that the deceased, at the date of his death, owned the Sunshine property and another property at Footscray, the combined value of which was $470,000. He had a personal estate of $120,777, with total assets of $590,777. The deceased had purchased the property at Footscray with a view to building units on it. However he never commenced that project.
The plaintiff’s former de facto husband is an inpatient at Sunshine Psychiatric Hospital. She receives $27.75 per month child support from him. She lives in a property which she rents from the Housing Commission. She receives a pension and other benefits of $921 per fortnight. She states that her financial position is very difficult. Sometimes she finds herself with no money at all. She states that she suffers from depression, neck pain, asthma and high cholesterol. She is unable to obtain employment, cannot drive, and her English is poor. She completed elementary school in Serbia, and has no other qualifications. She worked as a cleaner in Serbia. She has no family support in Australia.
The deceased had no other relatives in Australia apart from the defendant and his family. The defendant is 75 years of age. He migrated to Australia with his wife in 1954. Their three children were born in Australia shortly after their arrival.
After arriving in Australia the defendant worked in a number of different roles. In 1960 he moved with his family to Ballarat where he became a teacher at the School of Mines, Ballarat Central Technical School. In 1972 he transferred to the Ballarat North Technical School where he taught physical education. In 1986 he retired from all employment on the grounds of ill‑health. He was then 55 years of age. He has not been able to work since. He cashed in his superannuation after his retirement to pay for his current house. The only income which the defendant and his wife receive is a pension of $400 per fortnight each. The property in which the defendant and his wife live at Smythes Creek is owned by his wife and he jointly with their daughter and their son-in-law. His daughter and her husband share the house with his wife and him. The defendant’s only other asset is his car.
The plaintiff brings her claim under Part 4 of the Act. Before 1997, s.91 of the Act defined and thus limited the categories of those who may apply under Part 4 for provision out of the estate of a deceased person. Such persons then included, inter alia, a former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of maintenance. The Wills Act1997 amended s.91, so that it now empowers a court to order provision 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.” Section 91(4) specifies, in sub‑paragraphs (e) to (p), the factors to which the Court must have regard, in determining the three principal questions raised by an application under Part 4, namely:
(a)whether the deceased had a responsibility to make provision for the proper maintenance and support of the applicant;
(b)whether or not the distribution of the estate of the deceased, as effected by the deceased’s will, makes adequate provision for the proper maintenance and support of the applicant; and
(c)the amount of the provision (if any) which the Court may order for the applicant.
In Blair v Blair,[1] Chernov JA stated that, before the discretion under Part 4 is enlivened to make an order in favour of a plaintiff, the Court must first be satisfied of the first two matters listed above.
[1](2004) 10 VR 69 at [11].
Before the introduction of the 1997 amendments, the touchstone for determining whether a deceased had made adequate provision for the proper maintenance and support of an applicant was contained in the frequently cited statement of principle of Salmond J in Re Allen (deceased); Allen v Manchester:[2]
“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.”
[2][1922] NZLR 218 at 220-221.
That statement was quoted with approval by the Privy Council in Bosch v Perpetual Trustees Co,[3] and was subsequently approved and adopted by the High Court in a series of decisions.[4] In Blair v Blair, the Court of Appeal held that the same test applied in determining whether under s.91 a deceased had a responsibility to make adequate provision for the proper maintenance and support of the applicant, and, if so, whether the deceased had made such provision for the applicant by his will. Thus Chernov JA (with whom Nettle JA and Hansen AJA agreed) stated:
“ … It is probably apt to describe the obligation of the testator that forms the subject of the inquiry under sub-s.(1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Part 4 of the Act, including the decision of Ormistion J in Collicoat v McMillan [1999] 3 VR 803 at 815-824 and Grey v Harrison [1997] 2 VR 359 at 361, 364-6. Thus, it is clear enough that the ‘responsibility’ of which sub-s.(1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, sub-s.(3) is essentially concerned with whether the deceased – as a wise and just testator – has fulfilled his moral obligation to make adequate provision for the claimant’s proper maintenance and support. Given, however, that the Court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of s.91(4) when determining the jurisdictional issues, the characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part 4 of the Act. Be that as it may, it should be noted that while the criterion in each of paragraphs (e) to (o) of s.91(4) was concerned with a specific matter, paragraph (p) is open ended, enabling the Court to consider ‘any other matter [it] considers relevant’ and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator’s moral obligation to the claimant.”[5]
[3][1938] AC 463 at 479.
[4]McCosker v McCosker (1957) 97 CLR 562 at 571-2; Coates v National Trustees Executors and Agencies Co Ltd (1956) 95 CLR 494 at 519 (Fullagar J), 527 (Kitto J); Pontifical Society for the Propagation of the Faithful v Scales (1962) 107 CLR 9 at 20 (Dixon CJ); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 147-8 (Gibbs J).
[5]Above at [13].
In his concurring judgment in Blair, Nettle JA stated:
“The Court is bound in considering each of those questions to have regard to the matters mentioned in ss.91(4)(e) to (o) and, pursuant to s.91(4)(p), to any other matter considered to be relevant. Self‑evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in s.91(e) to (p) to a conclusion that a testator had a responsibility to make provision for the claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.”[6]
[6]Above at [41]; see also Lee v Hearn (2005) 11 VR 270 at [4] (Callaway JA), [53] (Batt JA).
In 1994, in Singer v BerghouseNo. 2,[7] views were expressed by three of the five Justices of the High Court that resort to the test of the deceased’s moral duty was neither necessary nor helpful. However, in Vigolo v Bostin and ors,[8] Gleeson CJ,[9] and Callinan and Heydon JJ, in their joint judgment,[10] supported the concept of a moral duty, by reference to the concept of the wise and just testator, whereas Gummow and Hayne JJ,[11] supported the approach in Singer, and considered that it was better to discard reliance on shorthand expressions such as “moral duty” and “moral claims”. At least in Victoria, it is accepted that the test of moral duty, as perceived through the eyes of a wise and just testator, is applicable to applications under the current statutory regime contained in Part 4 of the Act.[12]
[7](1994) 181 CLR 201 at 209 (Mason CJ, Deane and McHugh JJ).
[8](2005) 221 CLR 191.
[9]p.202 [21].
[10]pp.228-30 [113-121].
[11]p.218 [73].
[12]Lee v Hearn (above); Collicoat & Ors v McMillan & Ors [1999] 3 VR 803 at 818 (Ormiston J); In the Will of Moore deceased; Moore v Moore [2005] VSC 95 at [30] (Mandie J); Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 at [14][52] (Gillard J).
Mr Newton, who appeared on behalf of the plaintiff, opened the case to me on the basis that the plaintiff had been persuaded by the deceased to leave her former life in Serbia and come to Australia in the expectation of a happy and permanent marriage. Based on that expectation the plaintiff left her job as a cleaner in Yugoslavia, left her home, and came to Australia. When the marriage failed she was in a highly vulnerable state and made decisions which in hindsight may not have been correct. Nonetheless her current state is, at least in part, a result of her marriage to the deceased. The plaintiff is now in an impoverished state with no family support and few friends. The deceased was subject to an ongoing order for the maintenance and support of the plaintiff up to the time of his death, which was a recognition of her dependence on him. The plaintiff is now left without adequate support, in Housing Commission accommodation which is unhealthy and unfit for her. Mr Newton drew my attention to an affidavit of an estate agent Mr Douglas Kay, that it would cost approximately $200,000 for the plaintiff to purchase a very modest three bedroom residence in the area in which she now resides. Fundamentally the plaintiff’s claim was for payment of such a sum, together with a further legacy, which would cater both for the purchase of a suitable accommodation for the plaintiff, and some ongoing financial support for her.
In response Mr Moore, who appeared for the defendant, contended that at the time of his death the deceased did not have any responsibility to make provision for the maintenance and support of the plaintiff. He submitted that there was no longer any causal relationship between the marriage between the plaintiff and the deceased, and her current plight. He submitted that on the failure of her marriage to the deceased the plaintiff could have returned to Serbia, and indeed would have returned to Serbia, but for the advice given to her by the travel agent that it was better for her to preserve her entitlements under the permanent residence visa which she held in Australia. The plaintiff entered into a de facto relationship which was of some duration, and during which she bore two children. At the conclusion of that relationship she returned to Yugoslavia to visit her daughter from her previous marriage. Thus there was no physical impediment to her returning there. In those circumstances Mr Moore submitted that it was unrealistic to maintain that there was any ongoing causal relationship between the plaintiff coming to Australia to marry the deceased, and her current plight. Furthermore Mr Moore took issue with the suggestion by Mr Newton that the plaintiff had been “lured” to Australia by the deceased. Rather, on the affidavit material, the plaintiff had met the deceased, married him, and they had jointly made a decision that it was better to reside in Australia. Mr Moore emphasised that the marriage was of particularly short duration. Although it lasted for two years, the couple only cohabited for about four months. The plaintiff has stated that she suffers from ill health but has produced little supporting material to support such a claim.
Mr Moore particularly attacked the circumstances in which the plaintiff obtained and retained the order from the Magistrates’ Court whereby the deceased paid maintenance to her until the time of his death. In cross‑examination the plaintiff conceded that at the time she applied for maintenance to the Melbourne Magistrates’ Court in October 1992, she was three or four months pregnant with her first child from her de facto relationship, which was then on foot. She agreed in cross‑examination that she did not tell the deceased that she was pregnant, or that she was living with the de facto husband. Thus it was submitted that the maintenance order was obtained by a subterfuge. If the plaintiff had married her de facto husband then, by the operation of the Family Law Act, it is highly likely that the order for maintenance would have terminated. It is also probable that the deceased never knew of his right to set aside the maintenance order, and that if he had applied to set it aside, he would probably have succeeded.
Thus Mr Moore submitted that the plaintiff was only married to the deceased for a short period of time. The marriage ended in divorce with the parties making a clear break from each other. They did not maintain a friendly or close relationship with each other at all after their separation. Rather, and on the contrary, the plaintiff chose to go her own way and entered into another relationship and remained in Australia. The order for maintenance was obtained by a subterfuge. In those circumstances Mr Moore submitted that the defendant had no responsibility to make provision for the plaintiff in his will. If there was any such responsibility, then it could be discharged by the award of a modest sum in the order of $20,000 to the plaintiff. Mr Moore pointed out that the person to whom the deceased was closest was the defendant. He and his wife had supported and assisted the deceased in his early years in Australia, and the defendant had maintained a friendly and close relationship with him. The defendant, through health reasons, has ceased work, and the only income which he and his wife receive is a pension. Mr Moore submitted that in those circumstances the deceased did have some responsibility to the defendant. Alternatively it was submitted that it was understandable that he should, in the exercise of his testamentary freedom, choose to bestow his bounty on the defendant in his will.
In response, in final address, Mr Newton submitted that it was artificial to suggest that the marriage of the deceased to the plaintiff played no role in the decisions which the plaintiff subsequently made about her life, and which have, ultimately, resulted in her being in her current impoverished and difficult state. Mr Newton submitted that it is speculative to suggest that the maintenance order was in fact obtained by subterfuge. Alternatively he submitted that if the plaintiff had revealed to the deceased her de facto relationship in 1992, it is speculative whether in fact the maintenance order would have been made. Further he submitted that the plaintiff did not make an application for any property settlement on the failure of her marriage to the deceased. She might have had an entitlement to do so, and to that extent, by not doing so, has made a contribution to the estate of the deceased.
In accordance with the authorities which I have outlined above my task is to determine whether a wise and just testator would have considered it his moral duty to make some, and if so what, provision for the plaintiff. That question is to be determined by reference to the state of the facts in existence at the time of the testator’s death.[13] Those facts are not confined to the facts of which the testator himself actually knew. Rather the test is what a wise and just testator would consider his duty if he knew all of the relevant facts.[14]
[13]Coates v National Trustees and Executors Agency Co Ltd (above) at 408-9 (Dixon CJ); Goodman v Windeyer (1980) 144 CLR 490 at 498-8 (Gibbs J).
[14]Re Allen (deceased); Allen v Manchester (above); Hughes v National Trustees Executors and Agency Company of Australasia Ltd (above) at 147-8 (Gibbs J).
In determining whether the testator had a responsibility to make provision for the plaintiff, and if so what that provision should be, it is useful to recall and bear in mind the following passage from the judgment of Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales:[15]
“It has often been pointed out that very important words in the statute are ‘adequate provision for the 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 also 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 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 re-write the will 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.”
[15]Above at 19.
As Nettle JA pointed out in the passage which I have quoted from Blair, the fundamental test is what a wise and just testator would have considered his duty, by reference to each of the factors specified in s.91(4)(e) to (p) of the Act. Most of the facts in this case are not in dispute. Nonetheless it is useful first to outline my findings of fact by reference to each of those sub-paragraphs in s.91(4).
Section 91(4)(e)
Family or other relationship between deceased and applicant
The only relationship between the deceased and the applicant was that of husband and wife. The formal relationship lasted for two years but the couple only cohabited for approximately four months. Since the termination of their marriage in 1992 no further relationship subsisted between the testator and the applicant. Nor were there any residual feelings of amity between either of them.
Section 91(4)(f)
Obligations or responsibilities of the deceased to the applicant and the defendant
The only ongoing responsibility which the testator had towards the applicant was to continue paying her maintenance until the time of his death. During his lifetime he assumed no other responsibility for the plaintiff’s upkeep. The testator did not assume any financial obligation or responsibility to the defendant. As I have already stated, the defendant and his wife played an important role in persuading the testator to migrate to Australia in the late 1960s, and in supporting him and helping him get established on his arrival.
Section 91(4)(g)
The size and nature of the estate
The estate was admitted for probate purposes at $590,000. The defendant has filed an affidavit which reveals that, on realisation, the size of the estate was $649,000. The major assets of the estate were the deceased’s home at Sunshine, and his investment property in Footscray, the net proceeds of sale of which totalled $459,000. The other major assets comprised two life policies which were cashed by the executor for almost $165,000. The estate had no liabilities.
Section 91(4)(h)
The financial resources of the applicant and the defendant
It is not disputed by the defendant that the plaintiff is, and at the date of the testator’s death was, in straightened financial circumstances. She is living off a pension with a responsibility for her two young children. She resides in a Housing Commission home which, she complains, is so affected by dust that it has either triggered or aggravated her asthmatic condition. She has not worked since coming to Australia. Her previous occupation in Serbia was that of an unskilled cleaner. She has limited command of the English language. She also has health difficulties which I shall discuss below. For the purposes of this application I am satisfied that there is no realistic possibility of her obtaining gainful employment.
The defendant retired more than 20 years ago from his occupation as a teacher on the grounds of ill-health and has not been able to work since. He is now 77 years of age. As I have stated he and his wife share their home with their daughter and her husband. He lives on a pension.
Section 91(4)(i)
Any physical, mental or intellectual disability of the applicant or the defendant
The plaintiff in her affidavit and in her evidence has stated that she suffers from depression, high cholesterol, asthma and neck pain. She did not put forward any detailed evidence to verify that she suffers from any of those conditions. However she did tender two letters from the Western General Hospital dated 1 November 2006 and 24 January 2007, one of which confirmed an appointment with the neurological department, and one of which confirmed an appointment with the surgical department. She also tendered a short letter from Dr Len Uta dated 12 February 2007 stating that she presents with severe neck pains radiating through to the mid and lower back. A CT scan of the cervical spine has indicated facet joint degeneration of the lower two levels. That evidence does satisfy me that the plaintiff does suffer disability arising out of a degenerative condition to her cervical spine. The plaintiff also told me that she is prescribed Serepax of 15mg strength for her depression, and she produced a box of the tablets in Court. I am satisfied that she does suffer from some depressive condition, although that the nature, duration and extent of it is entirely unclear. The plaintiff also told me that she uses puffers for her asthma quite regularly. I am prepared to accept that she does suffer from some respiratory or asthmatic condition. In essence then, the totality of the evidence, albeit exiguous, does satisfy me that the plaintiff does suffer from ill-health involving degeneration of the cervical spine, depression and asthma. In Court she presented as a lady somewhat older than her chronological age of 50 years.
The defendant is 77 years of age and has retired through ill-health. The nature of his illness is not made clear by the affidavit material, but I do note that he retired from all employment in 1986, at the age off 55 years, due to his ill-health.
Section 91(4)(k)
Any contribution of the applicant to building up the estate or to the welfare of the deceased
The applicant only lived with the deceased for a short period of time during which she performed domestic duties for him. Mr Newton submitted that in a sense she made a contribution to his estate by not claiming any property settlement on the termination of the marriage. On the termination of the marriage the plaintiff consulted Legal Aid and applied for maintenance. In evidence she stated that she did not then know that she had a right to claim a property settlement. In cross‑examination she stated that she did know that in Serbia a divorced wife did have such a right. It is difficult, in hindsight, to make a finding as to why the plaintiff made no such application in 1992. If I were required to make such a finding, then in my view the probabilities support the proposition that the plaintiff did know of her rights, but did not consider that she had an entitlement to any of the property of the testator. The marriage was of particularly short duration. All of the assets of the testator had been built up through his own hard work and thrift. I should also observe that the property at Footscray was purchased some years after the failure of the marriage. In those circumstances I find that the plaintiff did not make any contribution to building up the estate of the deceased.
Although s.91(4)(k) does not refer to any contribution made by the beneficiary, nonetheless it is appropriate to observe that, perhaps somewhat indirectly, it could be said that the defendant did make some contribution. That contribution lay in the assistance given by the defendant to the testator in coming to Australia, and in getting a start in Australia.
Section 91(4)(l)
Any benefits previously given by the deceased to the plaintiff or the defendant
Apart from payment of maintenance (see below) the testator did not give any benefits to the plaintiff or to the defendant.
Section 91(4)(m)
Whether the applicant was being maintained by the deceased
As already noted the applicant was being maintained by the deceased. I have found that, on the facts which have been presented before me, it is probable that the plaintiff failed to make proper disclosure to the deceased that she was then in a de facto relationship, and that she was then pregnant, when she obtained the order for maintenance from him. It is a matter of speculation as to why the deceased continued to make those payments over the years. In her evidence the plaintiff stated that she did not at any time tell the deceased that she was living in a de facto relationship with someone, and that she had two children. She said she did not know whether the deceased knew of either of those facts. To the plaintiff’s knowledge, the deceased never saw her two children. The evidence of both the plaintiff and the defendant was that the deceased and the plaintiff certainly had no residual feelings of affection for each other, and indeed to the contrary. It is therefore most unlikely that the deceased would have continued to pay maintenance out of any feeling of sympathy or empathy with the plaintiff. In the circumstances, the most probable inference is that he continued to make the payments of maintenance because he felt legally obliged to do so by virtue of the continuing order to that effect from the Melbourne Magistrates’ Court.
Section 91(4)(n)
The liability of any other person to maintain the applicant
The plaintiff’s former de facto husband is an in-patient of the Sunshine Psychiatric Hospital. As I have stated, a small amount of child support, consisting of $27 per month, is deducted from his pension entitlements, and paid to the plaintiff.
Section 91(4)(o)
The character and conduct of the applicant or any other person
Nothing has been put forward by either side to indicate that this factor is at all relevant to my consideration.
The foregoing findings, which I have expressed above, elucidate the question of whether a wise and just testator, in the shoes of the late Mr Polovina, might have regarded himself as under an ongoing moral responsibility to provide for the proper maintenance and support of the plaintiff. In particular there are four circumstances which together, I consider, would have induced a wise and just testator to have regarded that he was under an ongoing moral duty to make some provision for the continued support and maintenance of the plaintiff. First, the testator had continued, over a period of some 14 years, to make maintenance payments to the plaintiff. It is true, as I have found, that the obligation to pay maintenance to the plaintiff was founded on a lack of candour by the plaintiff when the order was originally obtained, and indeed, in the ensuing years subsequent to the making of that order. Nonetheless the fact remains that the testator was, at the time of his death, continuing to make a contribution to the ongoing support of the plaintiff. While that contribution amounted to approximately 15% of her weekly income, nonetheless, given her difficult financial circumstances, such a contribution was no doubt of value and importance to her.
The second relevant factor is that the plaintiff is and was at the date of the testator’s death in an impoverished and indeed quite parlous financial condition. As I have found, she is, for all intents and purposes, unemployable. She has two young children for whom to provide. She has some health problems. She has no other relatives in Australia, and has few friends. To all intents and purposes, her sole means of support is her pension.
The third relevant factor is that, in my view, a wise and just testator would have considered that he played some, albeit particularly limited, role in the plaintiff’s current plight. Certainly, to use the phrase coined by Mr Newton, a lot of water had flowed under the bridge between the time of the plaintiff’s migration to Australia for the purpose of her marriage to the testator, and her current situation. During that time the plaintiff had made a number of decisions which were quite independent of anything attributable to the testator. Nonetheless the marriage to the testator was the reason why the plaintiff left her home and job in Serbia and travelled to Australia. To that limited degree the marriage played some, albeit particularly minor, role historically in the chain of events which has contributed to the plaintiff being in her current state. In those circumstances I consider that a wise and just testator, in the circumstances of the late Mr Polovina, would have considered that, at the date of his death, he was maintaining a woman of straightened means, who had no other independent means of support apart from her pension entitlements, and whose life had, at least in part, been affected by her migration to Australia and her short marriage to him.
The fourth relevant factor is the size and nature of the testator’s net estate, and the competing claims to his bounty. At the time of his death the testator had a sizeable estate. I do not accept Mr Moore’s characterisation of the estate as being “small”. The size of an estate is ultimately a relative concept. Given the calls on the testator’s bounty, I do not consider it would be appropriate for me to regard it as “small”. No doubt the plaintiff felt an appropriate sense of affection and obligation to the defendant which would justify him leaving the majority, and indeed a large majority, of his estate to the defendant. However, I consider that, given the nature and size of his estate, and the three other matters which I have set out above, a wise and just testator in the position of Mr Polovina would have considered that he had a moral duty to make some adequate provision for the plaintiff in his will.
The question then remains as to what provision the testator ought to have made for the plaintiff. In my view the answer to that question lies significantly in the matters which I have already discussed. I do not consider that a wise and just testator would have considered it his moral duty to make such provision as would have enabled the plaintiff to purchase her own home. Any such provision would, I consider, have been well beyond the bounds of any moral obligation imposed on the testator. On the other hand, I consider that a wise and just testator would have considered it his duty to continue the type of support which he had given the plaintiff during the last 15 years. Such support would have supplemented her pension entitlements, and thus alleviated the financial condition in which the plaintiff would otherwise have been placed. I consider that a wise and just testator would have considered it appropriate to bear in mind that the marriage was long past, that the plaintiff played no role in contributing to his estate, and that the bounds of his moral obligation to her could be suitably confined to making a lump sum legacy which would cater for her ongoing maintenance and support at approximately the level at which it subsisted at the time of his death.
Both Mr Newton and Mr Moore agreed, in the course of argument, that if I was to reach the conclusion which I have thus expressed, it would be appropriate for me to have regard to the life tables which are commonly used in personal injury claims to assess future loss of income and earnings. It was also common ground that, if I did so, I should refer to the tables which are calculated at an interest rate of 3% per annum.[16] While the approach in personal injury cases is a useful analogy, of course it does not, automatically, provide the direct answer to the question. Rather, that question involves an assessment by me of the type of support which a just and wise testator would have made for the ongoing care and support of the plaintiff in all the circumstances. Overall I consider that a wise and just testator, as a matter of prudence, would have left a legacy to the plaintiff which equated to supporting her at the current levels of the maintenance for 20 to 25 years. The selection of such a lengthy period would cater for the fact that, while the plaintiff’s children would, in due course, grow independent of her, at the same time the plaintiff’s own needs might increase, particularly in view of her health problems. I do not consider that the notional wise and just testator would have reduced that figure for the vicissitudes of life, given that the vicissitudes of life might work unfavourably for the plaintiff rather than favourably. In those circumstances I consider that, under s.91(4) of the Act, the order which should be made in favour of the plaintiff is that the plaintiff be entitled to a legacy of $60,000 out of the estate of the testator. Such a legacy would, in my view, not only be consonant with the moral duty of the testator, but also would leave intact and respect the testator’s understandable desire to leave to the defendant the large majority of his estate, bearing in mind the relationship between the plaintiff and the defendant, the needs of the defendant in his old age, and the role which the defendant had played in the plaintiff’s life in encouraging him to migrate to Australia and helping him make a start in this country.
[16]Compare Todorovic v Waller (1981) 150 CLR 402.
In conclusion, I hold that the testator did have a responsibility to make provision for the proper maintenance and support of the plaintiff in his will, and that he failed to do so. I further conclude that, in the circumstances, the plaintiff should receive a legacy of $60,000 from the estate of the testator.
Accordingly and subject to submissions by counsel I propose to make the following orders:
1.Declare that the distribution of the estate of Janko Polovina deceased effected by his will dated 15 March 1996 does not make adequate provision for the proper maintenance and support of the plaintiff Mara Draskovic.
2.Order that provision for the plaintiff be made out of the estate of the deceased by amending the will of the testator dated 15 March 1996 as follows:
(a)By adding the following paragraph 1 to the said will:
“I give and bequeath to Mara Draskovic the sum of $60,000 without legacy interest.”
(b)By amending paragraph 1 of the said will as follows:
“1AIf my uncle BRANKO BOGICEVIC of RMB 774 Waddell Road Ballarat in the said State Pensioner shall survive me for a period of thirty (30) days I GIVE DEVISE AND BEQUEATH to him the balance of the whole of my estate both real and personal whatsoever and wheresoever situate (my estate) for his sole use and benefit absolutely and I appoint him executor of my will and Trustee of my estate (“my Trustee”) which expression shall include any Trustee or Trustees for the time being of my estate whether original additional or substituted.”
3.Order that the defendant’s costs and expenses of the proceeding be had and retained out of the estate.
4.Liberty to apply generally.
I shall hear counsel on the question of costs.
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