Dunn v Perpetual Trustee Company Ltd
[2020] VSC 611
•28 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2019 04547
IN THE MATTER of Part IV of the Administration and Probate Act 1958
AND
IN THE MATTER of the Will and Estate of IRENE MAY ELLIS (also known as IRENE MARY DUNN and IRENE MAY LINDRUM)
| TANYA MAREE DUNN | Plaintiff |
| v | |
| PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007) (as Executor of the Estate of Irene May Ellis) | Defendant |
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JUDGE: | Englefield JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 July 2020 |
DATE OF JUDGMENT: | 28 September 2020 |
CASE MAY BE CITED AS: | Dunn v Perpetual Trustee Company Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 611 |
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FAMILY PROVISION – Eligibility as a member of the household – Dependency on the deceased at time of death – Defendant seeks summary judgment on plaintiff’s claim –Administration and Probate Act 1958 (Vic) ss 91(2)(b), 91(4)(d) and 91(5)(b) - Civil Procedure Act 2010 (Vic) ss 62, 63 and 64.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr WF Gillies | RB Legal Pty Ltd |
| For the Defendant | Mr JL Smith | KCL Law |
JUDICIAL REGISTRAR:
Introduction
Tanya Maree Dunn (in the will of the deceased called Tanya Marie Dunn) (‘plaintiff’) seeks further provision from the Estate of Irene May Ellis (also known as Dolly Lindrum, Irene Mary Dunn and Irene May Lindrum) (‘deceased’) pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’).
The defendant seeks summary judgment on the basis that the plaintiff’s claim has no real prospect of success.[1] This application was referred to me by order of Derham AsJ made 21 May 2020.
[1]Civil Procedure Act 2010 (Vic) ss 62-63.
The plaintiff relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act to make her application for further provision from the estate of the deceased. This reads:
(k)a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.
Where a person relies on paragraph (k) of the definition of eligible person, the Court must take into account in determining the amount of provision to be made (if any), among other things, the degree to which the person was wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death and any provision that is ordered must be ‘proportionate’ to that degree of dependency.[2]
[2]Administration and Probate Act 1958 (Vic) ss 91(4)(d) and (5)(b) (‘Act’).
For the following reasons, I am satisfied that at the time of the deceased’s death, the plaintiff did not have any degree of dependency on the deceased and therefore, her claim has no prospects of success. Summary judgment will be given to the defendant.
The Estate
The deceased died on 10 January 2019, leaving her last will dated 30 November 2012 (‘Will’).[3] On 9 April 2019, probate of the Will was granted to the defendant.[4]
[3]Affidavit of Tanya Dunn, sworn 15 November 2019, [3] (‘Plaintiff’s Affidavit’).
[4]Ibid, [4].
The deceased’s estate is valued in the inventory filed with the probate application at $12,745,544.57.[5] The estate contains three real properties in Albert Park, valued in the inventory collectively at $12,400,000.00; 158 Kerferd Road valued at $7,500,000.00 (‘158 Kerferd Road’); 160 Kerferd Road valued at $2,400,000.00 (‘160 Kerferd Road’), and 61 Page Street valued at $2,500,000.00 (’61 Page Street’).[6] The personal estate in the inventory was valued at $694,988.02. After expenses and the defendant’s capital commission (estimated to be $286,094.00), there may only be approximately $28,504.13 in cash reserves remaining.[7]
[5]Ibid, [5].
[6]Ibid, exhibit TMD-1.
[7]Affidavit of Domenico Madrigrano, affirmed 28 July 2020.
By the Will, each of the three properties are specifically bequeathed to three persons, each described as ‘god-daughter’ of the deceased.
Clause 8 of the Will contains the following gift to the plaintiff:[8]
I GIVE my interest in the property situate at and known as 32 Page Street, Albert Park, Victoria (“32 Page Street”) as and if owned by me at the date of my death to my niece TANYA MARIE DUNN (“Tanya”) if she survives me. If I am not the registered proprietor of 32 Page Street as at the date of my death (including because I have sold 32 Page Street since the date of this my Will) or if I am the registered proprietor but prior to my death I have signed a binding contract to sell 32 Page Street, I DIRECT my Trustee to pay to Tanya if she survives me, a sum of money in lieu of the gift of 32 Page Street (“the Sum”). The Sum shall be calculated as being the amount of the consideration on the registered transfer of land on which I am named as transferor of 32 Page Street less the amount of the discharge of any mortgage, charge or debt secured over 32 Page Street (including any bank fees relating thereto) as at the date of such transfer (being the settlement date), and less any capital gains tax paid or payable by me as a result of the sale of 32 Page Street. I DECLARE that the decision of my Trustee in determining the amount of the Sum shall be final and binding on all beneficiaries of this my Will.
[8]Plaintiff’s Affidavit (n 3), [9].
The property at 32 Page Street, Albert Park (‘the Property’) was sold in February 2017 with settlement of the sale occurring on 26 April 2017. The deceased received net sale proceeds of $1,342,420.13 from that sale.[9] Prior to the sale, the defendant, as the deceased’s attorney under power, applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for authority to sell one of the deceased’s real properties on the basis that the deceased required liquidity for care costs.[10] According to the plaintiff, on 31 October 2016, the VCAT provided an advisory opinion endorsing the sale of the Property.[11] As a result, the plaintiff’s provision under the Will is reduced to the legacy calculated by Clause 8 (‘legacy’).
[9]Ibid, [10], [67].
[10]Ibid, [10], [67], [70].
[11]Ibid, [70].
Unfortunately, it is not clear what amount, if any, the plaintiff may receive by way of the legacy, given the Property was sold in the lifetime of the deceased. Neither party took a final position regarding the present value of the legacy and the amount varied widely in response to questions regarding its calculation.
Summary of Relevant Facts:
This summary is taken from the plaintiff’s affidavit filed in the proceeding. For the purposes of the summary judgment application, the plaintiff’s evidence should be treated as accepted and taken at its highest.[12]
[12]Transcript of Proceedings, (Supreme Court of Victoria, S ECI 2019 04547, Englefield JR, 30 July 2020), 6 [24-26], 37 [15-23] (‘Transcript’).
The deceased was the plaintiff’s paternal aunt.[13] During life, the deceased and her husband were close to the plaintiff’s parents, and their children, the plaintiff and her sister. When the plaintiff was a child, she spent Christmas, birthdays and other celebrations each year with the deceased.[14] When the plaintiff’s family lived in Queensland, they visited the deceased in Victoria every Christmas and for most school holidays.[15] The plaintiff has many fond memories of staying with the deceased in one of the properties on Kerferd Road, Albert Park.[16] The deceased gave gifts to the plaintiff and her family on important occasions such as Christmas and birthdays.[17] The deceased paid for the plaintiff’s horse riding hobby when she was a child, including agistment fees and riding equipment.[18]
[13]Plaintiff’s Affidavit (n 3), [19].
[14]Ibid, [27], [31].
[15]Ibid, [27].
[16]Ibid, [30].
[17]Ibid, [30].
[18]Ibid, [31].
The deceased owned a billiards hall on Flinders Street in Melbourne, and as children, the plaintiff and her sister assisted the deceased behind the counter or visited after school just to spend time there with the deceased. [19]
[19]Ibid, [32].
At times, the plaintiff and her family moved away from Victoria and returned, although the exact chronology is unclear. At one point, the deceased gave financial assistance to the plaintiff to move to Sydney for work.[20] The plaintiff returned to Melbourne to work at the Australian Broadcasting Corporation and lived with the deceased for ‘about one year’,[21] although again it is unclear when this occurred.
[20]Ibid, [35].
[21]Ibid, [23].
According to the plaintiff’s evidence, the deceased made a will dated 13 November 1999 that left $100,000.00 and the Property to the plaintiff’s mother and the properties at 158 and 160 Kerferd Road were to be sold and to form a part of residue which was left one third to each of the plaintiff and two charities. [22] This will is not in evidence.
[22]Ibid, [12].
By a will dated 15 December 1999, the plaintiff receives a pecuniary legacy of $100,000.00, the Property and the income from one third of residue for life. This will also gave $200,000.00 to the plaintiff’s father and 61 Page Street to the plaintiff’s mother.[23]
[23]Ibid, exhibit TMD-2.
In 2005, the plaintiff’s father died.[24]
[24]Ibid, [17].
In around 2008 or 2009, the plaintiff and her mother moved in to live with the deceased.[25]
[25]Ibid, [24], [41].
In 2009, the deceased paid the plaintiff’s credit card debt of $25,000.[26] This was the last time the deceased provided the plaintiff with direct financial assistance.[27]
[26]Ibid, [35].
[27]Ibid, [62].
The deceased made a will dated 19 May 2009, in which the plaintiff received the Property and income from one third of residue for life. The plaintiff’s mother was devised 61 Page Street.[28] It is noted that the plaintiff’s affidavit at paragraph [13] misstates the effect of this will.
[28]Ibid, [13], exhibit TMD-2.
The deceased made a will dated 26 November 2010, in which none of the properties were specifically devised and the plaintiff received income from one third of residue for life.[29] Again, the plaintiff’s affidavit at paragraph [14] misstates the effect of this will.
[29]Ibid, [14].
In 2011, the plaintiff’s mother died. While the plaintiff’s mother was ill, the deceased told the plaintiff that she would ‘look after’ her by leaving her all her money or by putting it into a trust fund for the plaintiff, and that this was the right thing to do.[30]
[30]Ibid, [37].
The deceased made a will dated 11 October 2011, which again did not specifically devise any of her real properties and the plaintiff received the same gift of income from one third of residue for life, in similar terms to the will dated 26 November 2010.[31] Again the plaintiff’s affidavit misstates the effect of this will.
[31]Ibid, [15], exhibit TMD-2.
In 2012, the plaintiff moved to Los Angeles and found work in the film and television industry. The plaintiff still lives in Los Angeles.
On 30 November 2012, the deceased made her last will, as set out earlier.
After the plaintiff moved to Los Angeles she kept in contact with the deceased at least weekly and sometimes daily.[32] The plaintiff held an on-going intention to return to Melbourne to be with the deceased, but her difficulty was that it was hard to obtain employment in Melbourne in her industry.[33] The deceased consistently asked the plaintiff to return, stored some of the plaintiff’s belongings for her and gave the plaintiff a key to her home.[34] Conversations about returning were emotional for them. Being asked to return to Melbourne brought the plaintiff to tears, as the plaintiff realised that she was the deceased’s only family.
[32]Ibid, [42].
[33]Ibid, [42]-[43].
[34]Ibid, [44].
In July and August 2018, the plaintiff visited the deceased in Australia. This would be their last time together. During this visit, the deceased again asked the plaintiff to come back to live with her and the plaintiff said that she would. The plaintiff’s job situation in Los Angeles was ‘difficult’ and there was no available work in Melbourne, so the plaintiff decided to move back to Melbourne in early 2019. By then the deceased was ‘ill in bed’ and died on 10 January 2019.
The Plaintiff’s Circumstances
The plaintiff owns real property in Oakleigh East, Victoria, valued at $800,000.00, which is rented out.[35] At the time of her affidavit, the plaintiff had $30,000.00 invested in Australia for the management of that property, and received a taxable income of $60,000.00 USD a year.[36] The plaintiff does not own any property in the United States of America.[37]
[35]Ibid, [55].
[36]Ibid, [55].
[37]Ibid, [55].
The plaintiff suffers chronic migraines, which reduces her capacity to work and her upper body movement.[38] In late 2019, the plaintiff was diagnosed with breast cancer, underwent double mastectomy and has received further treatment.[39] The Court was informed at the hearing by the plaintiff’s counsel that the plaintiff has been unable to work for over a year.[40]
[38]Ibid, [56].
[39]Ibid, [57]; Plaintiff’s Submissions, 23 June 2020, [21] (‘Plaintiff’s Submissions’).
[40]Transcript (n 12), 21 [5-9].
The plaintiff was not being ‘maintained’ by the deceased prior to the death of the deceased.[41]
[41]Plaintiff’s Affidavit (n 3), [63].
Defendant’s Submissions
The central tenet of the defendant’s submissions are that the plaintiff is not an eligible person and cannot establish the requisite level of dependency to justify an order for her proper maintenance and support being made. Therefore the plaintiff’s cause of action has no prospects of success and summary judgment should be granted against her.
The defendant submits there are a number of ‘hurdles’ the plaintiff must overcome to succeed. In essence, the defendant argues the plaintiff must establish:[42]
·eligibility on the basis that she was likely in the near future, had the deceased not passed away, to again become a member of the deceased’s household;
·dependency on the deceased, pursuant to s 91(2)(b) of the Act;
·the deceased had a moral duty to provide for the plaintiff, pursuant to s 91(2)(c) of the Act;
·the Will fails to make adequate provision for the plaintiff’s proper maintenance and support, pursuant to s 91(2)(d) of the Act; and
·a degree of dependency on the deceased at the time of the deceased’s death under s 91(4)(d) of the Act.
[42]Defendant’s Submission, 9 June 2020, [13]-[17], [20] (‘Defendant’s Submission’).
The defendant relies on Lansdowne AsJ’s decision in Veniou v Equity Trustees Limited (‘Veniou’),[43] to submit that ‘dependence’ for the purposes of s 91 of the Act involves receipt of actual material aid.[44] Therefore, as the plaintiff was not in receipt of material aid from the deceased at the time of death, there was no ‘degree’ of dependency as required by s 91(4)(d) of the Act. Further, by s 91(5)(b) of the Act, any provision that may be ordered must be proportionate to the plaintiff’s degree of dependency at the time of death. As a result, there can be no award for provision, as the proportionate level of provision is nothing.[45] On this basis, the defendant submits that the plaintiff’s claim has no prospects of success and it ought to be summarily dismissed.[46]
[43]Veniou v Equity Trustees Limited [2018] VSC 832 (‘Veniou’).
[44]Defendant’s Submission (n 42), [19].
[45]Ibid, [21-2].
[46]Ibid, [22].
The defendant also rejected the plaintiff’s submission that s 64 of the Civil Procedure Act 2010 (Vic) (‘CPA’) has a role to play in this case. Rather, the defendant submitted allowing the case to proceed has no utility.[47]
[47]Defendant’s Submission in Reply, 30 June 2020, [5].
Plaintiff’s Submissions
The plaintiff submitted she has a meritorious claim which should proceed to trial in the normal course. Some emphasis was put on the plaintiff’s position under earlier wills, her strong family bonds with the deceased and the impact on her of the decision to sell the Property left to her by the Will. These may be issues relevant to moral duty, but are not directly relevant to the central questions in this summary judgment application, which are eligibility and dependency at the time of death. Further, it seems the plaintiff’s provision in some of the earlier wills was overstated in her affidavits and submissions, possibly due to misreading.
In respect to the question of whether or not the plaintiff was ‘likely in the near future’, had the deceased not died, to return to Melbourne and once again become a member of the household of which the deceased was a member[48], the plaintiff submits cross examination at trial is required and there has been no judicial interpretation of the elements of this category of eligibility.[49]
[48]Act (n 2) s 90 definition of eligible person (k).
[49]Plaintiff’s Submissions (n 39), [15].
The plaintiff accepts that dependency at the time of death must be shown in order to succeed, and relies on possession of a key to the deceased’s home, storage of items at the deceased’s home, promises of provision and likelihood of dependency in the future to establish dependency.[50] Further, the plaintiff argues that dependency should be more than mere material aid, and emotional support and care ought to be included.[51]
[50]Ibid [16-7]; Plaintiff’s Submissions in Response to Defendant’s Supplementary Submissions, 27 July 2020, [6] (‘Plaintiff’s Supplementary Submissions’).
[51]Plaintiff’s Supplementary Submissions (n 50), [14].
Given the novelty and the complexity of the case, the size of the estate and the closeness of the relationship between the plaintiff and the deceased, the plaintiff submits that this matter should be heard at trial.[52] The plaintiff relies on s 64 of the CPA to argue that even if there is no real prospect of success, this section permits the Court to decline summary judgment where it considers it is not in the interests of justice to dispose of the matter or when it is only appropriate to hear the matter on the merits given the nature of the dispute.[53]
[52]Plaintiff’s Submissions (n 39) [11]; Ibid, [19].
[53]Plaintiff’s Submissions (n 39), [5].
Summary Judgment Principles
Summary judgment is available under s 63 of the CPA where a claim has no real prospect of success. A ‘real prospect’ is more than a ‘fanciful chance’.[54] Power to summarily dismiss should be exercised with caution[55] but consistently with the Court’s own obligations to give effect to the overarching purposes of the CPA. Section 64 of the CPA does permit the continuation of a proceeding despite it having no real prospect of success if the Court is satisfied that:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
[54]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [29], [35(a)] (‘Lysaght’).
[55]Lysaght (n 54), [35(d)].
Additional caution may arise in summary dismissal applications involving TFM claims when the issue in dispute is whether or not there was a moral duty to provide or whether provision left in the will was adequate and proper.[56] These issues involve the exercise of discretions or ‘value judgments’ in an instinctive synthesis.[57] Such issues may need to proceed to trial, if unresolved by the parties. It is only where it is absolutely clear that a family provision claim has no real prospect of a favorable exercise of discretion, or is ‘bound to fail’, that summary dismissal must be given.[58]
[56]Warren v McKnight (1996) 40 NSWLR 390, 396; El-Zaouk v Draybi [2010] NSWSC 1001, [16-25], [28], [32]; Wolff v Deavin [2012] NSWSC 1315, [35-8]; Jackson v Newns [2011] VSC 32, [11]; IMO the Will and Estate of William James Milburn [2014] VSC 229, [34]; Bail v Scott-Mackenzie [2016] VSC 563, [42]; Innes Irons v Forrest [2016] VSC 782, [38].
[57]Grey v Harrison [1997] 2 VR 359, 366.
[58]Re Rattle; O’Neil; v Equity Trustees Ltd [2019] VSC 565, [58].
Here, the issues in dispute are whether or not the plaintiff comes within paragraph (k) of the definition of eligible person and whether the plaintiff has shown dependency on the deceased at the time of the deceased’s death. These are essentially construction questions relating to amendments made to the Act in 2014[59] and factual determinations, taking the plaintiff’s evidence at its highest.
[59]Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), commencing for deaths occurring on or after 1 January 2015.
Summary judgment will be ordered more readily where the issue involves a pure question of law than where there is a disputed question of fact.[60] Here the facts are not disputed, it is the application of the facts as asserted by the plaintiff to the law as it currently stands, which is the subject of this application by the defendant.
[60]Re Demediuk [2016] VSC 587, [18]; Mutton v Baker [2014] VSCA 43, [19].
Eligibility as a Member of the Household
The defendant concedes that the plaintiff and the deceased were members of the same household in the past.[61] Membership of a household requires both cohabitation (although not necessarily in one location) and a relationship of bonded closeness. Members of a household share their lives, provide mutual support and have an on-going connection. They are not flatmates or boarders. Membership of a household is a question of fact. In Re Meuleman,[62] I discuss the meaning of this phrase further, as it was in contention in that matter.
[61]Transcript (n 12), 6 [29] – 7 [10].
[62]Re Meuleman; Quiminakelo v Amidzic [2020] VSC 376, [38-41] (‘Re Meuleman’).
A key question in this case, is the plaintiff’s eligibility as a future member of the household. What is required by the Act is evidence of:
(i) membership of the same household as the deceased in the past; and
(ii) the plaintiff was:
(a) at the time of the deceased’s death;
(b) likely;
(c) in the near future;
(d) had the deceased not died;
(e) to again become a member of the household of which the deceased was also a member.
The defendant submits that the plaintiff’s evidence shows that she delayed her return to Melbourne when requested by the deceased in 2018 and that she made a positive decision not to return to live with the deceased to enhance her own employment prospects. That is, the defendant submits there was no likelihood of return and the reason the household did not resume was not any ‘untimely’ death of the deceased, but rather the active decision of the plaintiff.
There have been no finally decided cases[63] in Victoria on the meaning of the second limb of paragraph (k) of the definition of eligible person in s 90 of the Act. That is, where resumption of membership of the household was likely in the near future but for the death of the deceased. Many Australian families confront difficult decisions regarding whether to give up employment or to move significant distances in order to provide care at home to a frail aged family member. It may be a decision that requires some time and weighing up. It may be that a certain time is nominated, for example the start of the next year, to permit necessary arrangements and to minimise disruptions, but as is the case here, deterioration and death intervenes. The plaintiff’s affidavit makes clear that both these women wanted to be in each other’s lives, the problem was the practicalities. It is important to note that the plaintiff travelled to Australia in July and August 2018 to see the deceased. They were at that stage, each other’s closest lineal relatives. It was in this last visit that the plaintiff’s decision to return at the start of 2019 was made and communicated to the deceased. I accept the plaintiff’s submission that the likelihood of return in the near future had the deceased not died needs to be assessed after cross examination. I cannot give summary judgment against the plaintiff on the question of her eligibility to make this claim. Further, even if I did not consider the plaintiff has an arguable claim of eligibility on the current state of the evidence, this aspect of the claim would justify continuation of this proceeding under s 64 of the CPA. I cannot be certain that the plaintiff’s affidavit contains all evidence available to her of her intention to return to live with the deceased in early 2019.
[63]Ibid, among other reasons, the plaintiff’s claim was summarily dismissed on this ground.
Threshold Dependency
A person relying on paragraph (k) of the definition of eligible person must satisfy the Court that they were wholly or partly dependent on the deceased for their proper maintenance and support before a family provision order may be made in their favor under s 91(2)(b) of the Act. Dependency under s 91(2)(b) need not be current ‘as at the date of the deceased’s death’ but dependency on the deceased at any earlier time is sufficient for this sub-section.[64]
[64]Veniou (n 43), [28] (although dealing with a grandchild claim, s 91(2)(b) of the Act applies).
The defendant, for the purposes of the current application, proceeds on the basis that the plaintiff was dependent on the deceased for accommodation while they physically resided together at the deceased’s home and satisfies the requirements of s 91(2)(b) of the Act. [65]
[65]Transcript (n 12), 13 [3] – 14 [30].
Quantum Dependency
After satisfying the threshold dependency required by s 91(2)(b) of the Act, an order for provision may be made for a member of the household under the Act. However, dependency on the deceased at the time of death is relevant to the quantum of any provision that may be ordered.
By s 91(4)(d) of the Act, the Court, in determining the amount of any provision to be ordered for a member of a household, must take into account the ‘degree’ of dependency on the deceased for their ‘proper maintenance and support at the time of the deceased’s death’. Then, by s 91(5)(b) of the Act, the amount of provision which is ordered must be ‘proportionate’ to that degree of dependency. The extent of any earlier dependency is irrelevant to the limit imposed by s 91(5)(b) of the Act on the amount of provision that may be ordered. If there is no dependency at the time of death, the Court is bound to determine that there is no degree of dependency and, proportionately, no provision may be ordered. Such a claim is futile. This was the result in Veniou and Re Meuleman.
Dependent on the Deceased at the time of Death
The first question that arises is what is dependency for this purpose? In Veniou, Lansdowne AsJ concluded that dependence involves the actual receipt of material aid.[66] Here, the plaintiff deposes to receiving no direct material aid or financial assistance from the deceased at the time of the deceased’s death.[67] However, the plaintiff relies on possession of a key to the deceased’s home and storage of goods there to support the proposition that the plaintiff had a ‘contingent’ right to future accommodation with the deceased or a contingent future dependency.
[66]Veniou (n 43), [53].
[67]Plaintiff’s Affidavit (n 3), [62-3].
Even if it is accepted that the possession by the plaintiff of the key and the storage of her belongings were tantamount to a right to future accommodation, s 91(4)(d) of the Act is clear about the temporal requirement. It is not enough that the plaintiff may have become dependent on the deceased in the future, even the near future if that could be established. What is required is at least some degree of dependency ‘on the deceased’ ‘at the time of death’ of the deceased. Dependency ‘on the deceased’ requires the deceased to be alive and therefore, in existence. Further, ‘at the time of the deceased’s death,’ is at the end but still within the deceased’s lifetime.[68] Any contingent expectation of material aid in the future (even if it were capable of being established on the evidence) is not dependency ‘on the deceased’ ‘at the time’ of the deceased’s death.
[68]Veniou (n 43), [53].
The plaintiff also relies on promises made by the deceased to provide for the plaintiff in her will to fulfil the requirement of dependency. Of course, the deceased did provide for the plaintiff in the Will. It was only as a result of a decision taken by others that the Property left to the plaintiff by the Will was sold. The value of the legacy is still to be determined. In any event, promises of future provision are incapable of being actual financial or material aid. In Veniou, Lansdowne AsJ determined that actual receipt of material aid for a person’s ‘proper maintenance and support’ cannot be satisfied by any promise of future provision from the estate of the deceased.[69]
[69]Veniou (n 43), [54]; Re Meuleman (n 62), [79]
The plaintiff further relies on emotional support or ‘dependence’ to satisfy s 91(4)(d) of the Act. In Veniou, Lansdowne AsJ left open the question of whether “non-material or emotional support could fall within the word ‘support’, or be necessary, in the case of an individual, for that individual to ‘continue existing or operating’”.[70] The plaintiff in Veniou did not rely on emotional support, so this observation is, strictly speaking, obiter dicta. Moreover, consistent with New South Wales cases dealing with dependency under the equivalent legislation, ‘emotional support’ by itself may be insufficient, although it may amplify the degree of the dependency created by provision of material aid.[71] That is, unless, possibly, a plaintiff is a young child or otherwise unable to care for themselves, say due to disability, some form of material aid or financial assistance, or a right to such support, is required to establish dependency.[72]
[70]Veniou (n 43), [50].
[71]Veniou (n 43), [68]; Re Meuleman (n 62), [69].
[72]Re Meuleman (n 62), [77-8].
In this case, as the plaintiff is a capable independent adult and there was no material aid or financial assistance being provided by the deceased to the plaintiff at the time of death, even if the plaintiff was ‘emotionally’ dependent on the deceased, it would be insufficient for s 91(4)(d) of the Act dependency. In any event, while the deceased and the plaintiff had a close and loving bond, I am not satisfied the plaintiff was ‘dependent’ on the deceased for emotional care or support essential to the plaintiff’s functioning.
Finally, the plaintiff seeks to distinguish Veniou and argue that dependency on the deceased may receive a broader interpretation that brings together strong emotional ties and likely future dependence, into a relationship of ‘mutual codependence’.[73] As I understand this submission, the proposition is that focusing on provision of financial assistance or material aid is too ‘narrow’ and misses the underlying breadth of the concept of dependency, as set out in Veniou. It is true that dependency is a complex concept and is not limited only to receipt of financial assistance. As discussed in Re Meuleman,[74] there can be dependency without the provision of any actual support and there can be provision of actual support without dependency. However, dependency refers to a state or condition of being dependent. As explained by Hallen J in Russell v NSW Trustee and Guardian: [75]
The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.
[73]Transcript (n 12) 27 [13] - 28, [21].
[74]Re Meuleman (n 62) [64].
[75]Russell v NSW Trustee and Guardian [2013] NSWSC 370, [27].
However, in this case, as set out earlier in these reasons, I find the plaintiff was not financially or emotionally dependent on the deceased. Further, the plaintiff had no unmet need for or right to financial support from the deceased at the time of the death of the deceased. Dependency cannot be established by collective reference to a number of matters that do not each singularly amount to dependency. Even under a broad reading of Veniou, different aspects of a relationship of non-dependency cannot be compounded in this way. The plaintiff was not dependent on the deceased at the time of death within the meaning of s 91(4)(b) of the Act.
Conclusion
The plaintiff was a member of the same household as the deceased during three periods of her life, most recently in or about 2008 or 2009. The defendant concedes that during such periods, the plaintiff was dependent on the deceased within the meaning of s 91(2)(b) of the Act.
The plaintiff may have been likely to resume living with the deceased in early 2019 had the deceased not died, following a decision taken during a visit to Australia to see the deceased in July and August 2018. The question of the eligibility of the plaintiff as a past member of the household who was likely to return to the household in the near future, had the deceased not died, is not suitable for summary judgment.
However, the absence of dependency at the time of death is fatal to the plaintiff’s claim. Summary judgment will be given on the basis that the plaintiff was not dependent on the deceased within the meaning of s 91(4)(d) of the Act and that therefore, by s 91(5)(b) of the Act, there can be no order for provision.
Therefore, despite the real question to be tried regarding eligibility, there is no utility in this case proceeding to trial, especially where the plaintiff’s reduced provision under the Will may be further eroded by costs.
The parties are to forward draft Orders giving effect to these reasons. If the parties are unable to agree, including on the question of costs, a further hearing can be arranged.
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