Eins v Kammerhofer

[2004] VSC 417

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6045 of  2003

SYBILLA EINS	Plaintiff
V
FRANZ KAMMERHOFER	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	13-14 October 2004
DATE OF JUDGMENT:	14 October 2004
CASE MAY BE CITED AS:	Eins v Kammerhofer
MEDIUM NEUTRAL CITATION:	[2004] VSC 417

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Testator’s family maintenance – Application by de facto spouse – Testator’s moral duty – Whether testator had responsibility to provide for claimant’s proper maintenance and support – Whether provision in will inadequate – Administration and Probate Act 1958, Part IV, s. 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Baker	Henderson & Ball
For the Defendant	Mr A. Verspaandonk	Lorraine Jones & Associates

HIS HONOUR:

1. I have reflected on the proposed disposition of the proceeding which I mentioned in the course of argument yesterday, namely that the plaintiff have a life interest in the real estate in which the estate holds a one-half interest as tenant in common, plus a sum of $20,000 out of the funds held by the administrator.

1. I should also say that I mentioned the matter of a car or what should happen to the cars that have been left in her possession, that is a matter which I will return to with counsel later.

1. I can briefly indicate the view that I have arrived at.  I wanted to reflect on the matter overnight lest some greater time for reflection changed the view that I had yesterday; it does not.

1. I can briefly indicate why:  the first question in these cases is whether the deceased had a moral duty to the plaintiff.  That concept is well understood and since the amendment to the Administration of Probate Act continues to be the way in which to consider the first question under s.91.

1. As far as that is concerned there is, I think, no doubt that the plaintiff, and earlier with her husband Albert, provided substantial financial contribution to the establishment and improvement of the house property in question.  That is to say there was a contribution to the creation of the asset and having it what it was at the time of death.  That was something which the deceased should have recognised.

1. In addition to that there was the undoubted comfort and support that was provided by the plaintiff to the deceased.  I am satisfied on the evidence that there was a mutuality in that respect.

1. There was also, I would conclude on the evidence, an expectation that the deceased would leave the half interest that he had in the property to her.  I do recognise, however, that he did not execute the draft Will which I think I am correct in saying provided for his half interest to be left to her.  There may well have been reasons drawn from a reflection on his relationship with his sons, which explain why that happened.  Nevertheless, it is I think something that can be inferred from the evidence that there was an expectation in the circumstances reasonably made that that property would have been left to her.

1. Then there is the final factor, as I see it, of her relatively limited means which I conclude were what they were in substantial part by reason of her assistance given over the years, her financial assistance to the deceased. 

1. All these things put together produce a case, in my view, in which there was a moral duty upon the deceased to make provision for the maintenance and support of the plaintiff.

1. At the same time, in my view, there was a duty of the same type that the deceased held towards his sons.  I do not accept the proposition which is at the threshold of the plaintiff's case that there was no such moral duty; that by reason of past circumstances, including the actual separation, the provision of such financial assistance as the deceased gave to his wife and thereby to the children, that, in some way, any moral duty had ceased to exist.  I reject that case entirely.

1. I do not accept that a father can ignore his sons where he makes an inadequate effort to see them, or his sons in response make an inadequate effort to see him; that it is to say that it can be held that he had no moral duty to make provision for them on his death.

1. The question then is, in those circumstances, and having regard to the matters which I am required by s.91 to have regard to, what is the appropriate disposition?

1. I have mentioned the plaintiff’s financial circumstances, they are limited circumstances.  They were briefly described by her in cross-examination in a summary way and to that there was later added by her that she now has a further sum of approximately $2,000 being the balance remaining of funds of a gift that came from her brother.

1. I take account of the personal and financial circumstances of the plaintiff and of the sons; the latter are briefly described in the affidavit evidence and, as I have said, in relation to the plaintiff in her oral evidence.

1. Insofar as the sons are concerned, there was no challenge to anything that they said.  Their evidence appears in the affidavits and it is not necessary to set it out.  It is apparent, however, from their evidence that such financial benefit as may be able to come from the estate of their father would be a significant gain for them.

1. I should say in relation to the evidence of the plaintiff that it suffered from certain matters, namely there was a lack of candour in relation to the money that came from her brother and there was a continuing failure in that respect in that no documents were produced by her which recorded the amount received, its holding and its disposition and the present amount which she said she now had remaining from it.

1. There was a lack of documentation in relation to the contributions which she said she made to the deceased and towards the house and an imprecision as to the extent of those contributions.  That is not entirely to be unexpected because one is talking of contributions that were made over a long period of time.  It is not to be expected that people are going to maintain files of papers, accurately recording what has happened in the ordinary exchange of things, within a household and between friends.  I take those matters into account both ways.

1. Then there was the fact that part of the contributions, to the extent of $150,000 or so, was not a loan.  The point of mentioning that is that on the plaintiff's case the contributions other than that $150,000 or so, was a loan, one might have expected the recording of the transaction.  There is the affidavit of the deceased in the Family Court proceedings in which he refers to an amount of $136,000 but it is not entirely clear to me whether that related to the amount that went towards acquiring the half share or it did not.

1. The reality is that much of the payments went to the building and improvements to the house, as to which the plaintiff has the benefit of one-half.  It is difficult to be precise as to the net amount which might clearly be called a loan or which might fairly be brought to account in this case.  Nevertheless, her contributions were real and go to establish the moral duty.

1. I think as I said in argument that while one can accept that there was a real financial contribution made to the deceased and thereby to the estate which he left, it is difficult to be precise as to it.

1. The balance of funds in the estate is now some $87,493 out of which costs must be paid; costs to the plaintiff and the defendant, which leaves a sum a little over $31,000 it is estimated.

1. Counsel for the defendant has said that the administrator will not charge commission.  That is understandable, as if he did so he would in effect be reducing in his favour but against his brother the relatively small amount that will presently be available for distribution to them equally.  There is, I think, some wisdom in the course which has been indicated by counsel.

1. Having regard to these matters and to the various considerations in s.91 I am of the view that the operation of the provisions of the Administration of Probate Act, which would leave the entire estate passing to the sons, to the exclusion of the plaintiff, does not satisfy the moral duty on the deceased to the plaintiff and that an order for provision should be made in her favour.

1. As I indicated yesterday, that provision should provide for the plaintiff to enjoy during her life the half interest of the deceased in the house, the sum of $20,000, and there will be an order for solicitor/client costs, and I raise with counsel the matter of a motor car; I do not know whether either of the two cars which have continued in the plaintiff's possession are desired by the plaintiff to remain, that could be provided for, I do not know.  She is not driving.  There are costs involved with the ownership of cars, registration and other costs.  I will hear counsel for the plaintiff on that.  I assume that counsel have had some discussion about it since it was raised yesterday.