Equuscorp Pty Ltd v Wilmoth Field Warne

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5130 of 2006

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

and

IN THE MATTER of the Wills and Estates of AMANDA MACLAGHLAN PETERS and JACK RAYMOND PETERS (deceased)

BETWEEN

ALISON MAREE PETERSEN

and

ROBYN GABRIEL STEWART

First Plaintiff

Second Plaintiff

and

JACQUELINE ELIZABETH MICEVSKI (Who is sued in her capacity as the Executor of the Estate of the abovenamed deceased's AMANDA MACLAGHLAN PETERS and JACK RAYMOND PETERS)

Defendant

---

JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2007
DATE OF JUDGMENT:	14 August 2007
CASE MAY BE CITED AS:	Petersen v Micevski
MEDIUM NEUTRAL CITATION:	[2007] VSC 280

---

Testator’s family maintenance – Sister leaves estate to her twin sister – Application by adult sisters of testatrix – Testatrix’s estate derived from father who gave her the proceeds of the family home – Whether testatrix had responsibility to provide for plaintiffs – Whether need for provison – Administration & Probate Act 1958 s 91.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M C McKenzie	Flitner & Company
For the Defendant	Mr R C Wells	Slater & Gordon Pty Ltd

HIS HONOUR:

This is an application by two adult sisters for provision out of the estates of their late sister and father pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”). The defendant is their other sister.

The four sisters were the adopted children of Jack Raymond Peters born 25 January 1927 and Colleen Angela Peters born 30 April 1930, who married on 16 February 1952. No children were born of the marriage, however they had four daughters by adoption, namely:

(a)Robyn Gabrielle Stewart[1] born on 28 February 1957 and adopted in November 1957.
(b)Alison Maree Petersen born on 28 November 1970 and adopted in 1972[2].
(c)Amanda Maclachlan Peters[3] and Jacqueline Elizabeth Micevski, twins born on 4 March 1972 and adopted in June 1972.

[1]Her middle name is incorrectly spelt Gabriel in the heading to the proceeding.

[2]Contrary to the evidence of Alison and Jacqueline, Robyn said that the year of adoption was 1971. Nothing turns on this. It is an instance of several minor differences in dates.

[3]Her middle name is incorrectly spelt Maclaghlan in the heading to the proceeding.

Colleen Peters died on 1 June 1995. It may be presumed that she left her estate (however comprised) to her husband Jack.

Amanda died in a car accident on 23 April 2005. She left a will dated 4 March 2003 prepared by Osborne & Osborne, solicitors of Seymour. The will appointed Jacqueline and her father (Jack Peters) her executors and trustees, gave to Jack Peters the right to use and occupy her property at 33 Heritage Drive, Broadford during his life and left the net residue of her estate (including the Broadford property) to Jacqueline absolutely or, if Jacqueline predeceased her leaving a child or children who survived her and attained 25 years, then to such child or children. The will contained a power of advancement of income or capital of the vested or contingent share of any beneficiary. It also provided that in relation to any disponee who did not survive Amanda by 30 days the will would take effect as if that person had predeceased her.

When Amanda died, Jack, who was in declining health, was resident at Caladenia Nursing Home in Kilmore. On 28 April 2005 he signed a financial and a medical treatment enduring power of attorney by which he appointed Jacqueline his attorney and her husband Peter Micevski as alternate for her.

Jack remained at the nursing home until 1 July 2005 when he was transferred to Northern Hospital where he died on 10 July 2005, aged 79.

Jack left a will dated 28 July 2003, also prepared by Osborne & Osborne, by which he appointed Amanda, and failing her Jacqueline, executor and trustee. He left his estate on trust for Amanda, but if that trust failed for want of a beneficiary then for Jacqueline absolutely provided that if she predeceased him leaving a child or children who survived him and attained 18 years then to such child or children. The will concluded with a power of advancement clause and a clause requiring that a disponee survive Jack by 30 days, in the same terms as the clauses in Amanda’s will.

Probate of Amanda’s will was granted to Jacqueline on 16 September 2005. According to the inventory filed in connection with the application for probate Amanda had the following assets and liabilities:

Assets

(a)       House and land at 33 Heritage Drive, Broadford

$200,000

(b)       Commonwealth Bank

$192.43

(c)       Household contents

$2,000

$202,192.43

Liabilities

(a)       Westpac Bank

$6.88

(b)       Optus

$143.59

(c)       Commonwealth Bank – Economiser Home Loan

$21,061.64

(d)      TXU – electricity

$416.77

(e)       Mitchell Shire – Rate Instalment

$174.00

$21,802.88

$180,389.55

The inventory is exhibited to Alison’s affidavit. This differs from the inventory exhibited to Jacqueline’s affidavit in one respect. Whereas the inventory which Jacqueline exhibits as that filed with her probate application includes as an asset the sum of $2,500 being an amount payable under an AAMI motor vehicle insurance policy, that is not included as an asset in the inventory exhibited to Alison’s affidavit. It is apparent on the face of the two inventories that that produced by Alison is a copy of the filed inventory; it bears the stamp of the Registrar of Probates dated 12 September 2005. By comparison, the inventory produced by Jacqueline is an unsigned, unstamped draft. It is apparent on the evidence that the AAMI insurance item was removed from the final inventory as a result of AAMI declining liability to pay under the policy on the ground that at the time of her fatal car accident the level of alcohol in Amanda’s blood was in excess of the legal limit.

Jacqueline’s husband lent her the money to pay the fees for Amanda’s probate. Jacqueline referred to a loan of “a couple of thousand” which accords with Osborne & Osborne’s invoice for the grant of probate being $2,202.80. I refer below to the present position of the estate.

Jacqueline has not sought probate of Jack Peters’ will and no grant has been made. Apart from his clothes, which Jacqueline gave to the Salvation Army, his only asset was a tax refund of $2,947.15. The refund went to the solicitors who “handled everything”. Jacqueline received no part of the sum. It all went on fees and bills. Apart from that sum she did not have funds with which to pay the costs and expenses of administering the estate.

It is in this framework of events that on 14 March 2006 Robyn and Alison commenced the present application against Jacqueline as executor of the estates of Amanda and Jack Peters. Claiming that each of Amanda and Jack Peters had responsibility to make provision for their proper maintenance and support, and that they had failed to do so, they claimed an order for provision as the Court thinks fit out of the estates.

Obviously, the application concerning Jack Peters’ estate must be put aside. There is no net estate and no probate. No case was sought to be established, and there is no basis on which it could be considered that Jacqueline’s evidence as to the estate was not correct. Sensibly therefore, in his final address counsel for the plaintiffs sought provision only from Amanda’s estate.

Accordingly, the question is whether, as referred to in s 91(1) of the Act, Amanda had responsibility to make provision in her will for the proper maintenance and support of Robyn and Alison. Of course her will made no provision for them at all. In determining whether Amanda had responsibility to make provision and, if so, the amount of the provision (if any) which the Court may order, the Court must have regard to the matters in s 91(4)(e) to (p) of the Act. In this case neither counsel considered it necessary to refer to the authorities which identify the correct approach to the operation and application of the Act, referring only to the three cases relied on by counsel for the plaintiffs, McKenzie v Topp[4]; James v Day[5]; Keets v Marks[6]. Otherwise, concerning the correct approach to the legislation the authorities are well known and it is sufficient for me to refer to my judgments in Iwasivka v State Trustees Limited[7] and Brinkkotter v Pelling[8].
[4][2004] VSC 90.
[5][2004] VSC 290.
[6][2005] VSC 172.
[7][2005] VSC 323 at [7]-[12].
[8][2006] VSC 101 at [154]-[156].

The parties – Robyn, Alison and Jacqueline – were the only deponents and each was cross-examined on her affidavit. Jacqueline swore two further but short affidavits just before the hearing for the purpose of bringing the position of the estate and herself up to date.

It was a sad case bearing everything in mind, and I make but few observations concerning the parties as witnesses. The personality, nature and temperament of each sister was different. In giving evidence Robyn exhibited measure and control in part attributable to her being older and her greater life experience. Alison, by contrast, spoke with vigour and force, at times to the point of aggression. Each, I considered, felt hurt by not having received a share in what they submitted was in effect their parents’ estate, but which had been given to Amanda in the circumstances referred to below. I considered that Alison’s demeanour in giving evidence was likely also to have been affected by her desire for money to apply in reduction of her debts.

In giving evidence Jacqueline manifested considerable emotional stress. This was consistent with the state of depression from which she suffers, and the stress doubtless resulting from her parlous circumstances, her uncertain future and the threat to her security constituted by the proceeding. She gave evidence honestly to the best of her ability.

There were some differences in the evidence. The task of assessing the evidence, and determining the facts was not made easier by the quantity of inadmissible and generalised material in the affidavits. Although particular objection was not made by counsel, the problem was adverted to. I do not rely on inadmissible material (hearsay, unattributed assertions and conclusionary statements the basis of which was not stated in the affidavit or of evidence) unless it was otherwise established or agreed. So approaching the matter, generally the differences do not matter as the family relationship or the likelihood as to the substance of the event is reasonably clear. At times however I considered that Robyn and Alison went too far in their criticisms of the others in seeking to establish their case and gave evidence that I do not accept.

I turn then to the background circumstances.

When Robyn was adopted Jack and Colleen were living with Colleen’s parents at Granville Street, Glenroy. They moved from there to a property at 7 Fleetwood Court, Gladstone Park which Jack and Colleen purchased. That remained the family home in which the children were raised. When Robyn was 14½ Alison was adopted. The twins were adopted later in the same year.

Unfortunately Jack had developed a problem with alcohol and which became worse over the years. Under the effect of alcohol he had the tendency to pick on and nag the family. According to Robyn, he suffered three nervous breakdowns before his 50^th birthday, and resigned with a pension from his job at the Government Aircraft factory where he was a chief tool designer and draughtsman. Jacqueline said that she had no knowledge of her father having nervous breakdowns as Robyn stated. However, he told Jacqueline that he left his job at the Aircraft factory as a result of stress suffered due to witnessing the collapse of the West Gate Bridge.

Colleen was a loving mother although when her temper was stirred she could inflict corporal punishment, just as Jack sometimes did. Altogether though it is evident that Jack and Colleen were loving parents who brought the girls up as well as they could.

In 1977 Robyn married Peter Stewart. Until her marriage Robyn lived with her parents; on marrying she and her husband commenced living at the home of her mother’s parents in Glenroy. From this time Robyn would see her parents at least weekly.

It is convenient to note that on the death of her parents Colleen inherited their house property. Robyn and Peter, who were still living there, purchased the property from Colleen (or Colleen and Jack) for $28,000 on an interest free loan paid off between around 1981 to probably 1990. It was, Robyn said, “extremely generous” of her parents to enable her and her husband to purchase the home on that basis. That was what Colleen wished. Robyn was then the only breadwinner in the marriage as her husband was not working due to injuries sustained in a car accident; he did not start working until about 1989.

As to this matter of the purchase of her grandparents’ former home, and the extent of the benefaction, I note Jacqueline’s evidence that the sale price was $13,000. Whether it was $13,000 or $28,000 or something around those figures the evidence as to the price was oral. Either way also the issue would be the extent of the parents’ generosity. On balance I accept Robyn’s evidence as she was the party to the transaction. I thus accept that the transaction was “extremely generous” to Robyn and her husband.

As Robyn was much older than her sisters most of their growing up years were spent at home after Robyn had left.

Alison said that there was fighting and tension between herself and the twins, and she referred to the twins being jealous after she met her husband Brad. On the other hand Jacqueline said that Alison often argued with Amanda and herself and their relationship deteriorated, Jacqueline believing that Alison was jealous of the close relationship between the twins. One might be inclined to think that whatever attitude or difficulties existed between Alison on the one hand and Amanda and Jacqueline on the other hand might have been no more than may occur between siblings. However Jacqueline said that during these arguments Alison was often violent towards Amanda and herself, and recalled an occasion when she was about 14 when Alison assaulted her during an argument and broke her nose for which she was hospitalised. In oral evidence in chief Alison said that Jacqueline’s evidence that she was hospitalised was “a lie”. She agreed that she broke Jacqueline’s nose but said that Jacqueline “was never hospitalised from it nor saw a doctor”. I make two observations about this. First, it seems improbable and inconsistent with the care to be expected of loving parents that Jacqueline was neither taken to hospital nor saw a doctor. Secondly, and as mentioned earlier, I observed unprovoked aggression in Alison when she gave evidence. At the same time it must be allowed that in any situation between siblings fault or cause can lie on both sides. Ultimately I prefer Jacqueline’s evidence on this matter.

The twins were extremely close and rarely spent time apart. Jacqueline said, and I accept, that Amanda was a very quiet, introverted child who, at the age of 19, was diagnosed with Attention Deficit Hyperactivity Disorder. According to Jacqueline, Amanda often told her and her parents that they were the only people she could trust. Further, when Amanda was about 19 she told Jacqueline that a teacher had sexually molested her at the age of 8; Jacqueline believed that this contributed to her mistrust of people. There is, of course, no way of knowing all the truth on these matters or as to Robyn’s evidence that Amanda was introverted and anti-social from the beginning due to problems at birth. That is not to reject the evidence as to the factor or factors contributing to Amanda’s personality and character. Nevertheless the fact is that Amanda was by nature quiet and introverted, and unable to mix and work in the community.

Robyn said that as the girls became teenagers problems began to arise. This included the matter of arguing and difficulties between Alison and the twins. Robyn ascribed that and difficulties due to Jack’s drinking as leading to Alison, around 1986 or so, being on the verge of anorexia. Jacqueline denied this, recalling Alison as being slim, fit and healthy. There are a number of such disputes and differences in the evidence. They are of a type which are difficult to resolve. That said, Alison gave no evidence of anorexia or being on the verge of anorexia, and in these circumstances I accept Jacqueline’s evidence. I should say that counsel did not take the matter up in the oral evidence or submissions, and sensibly so as the case hardly turned on it. The same may be said of a deal of other matters in the affidavits. Robyn further said that Amanda transferred to different schools because of problems with accepting discipline. While I accept that Amanda changed schools I put little or no weight on the implied criticism for the simple reason that it ignores the cause for any behavioural problems.

Robyn said that in 1987 when Jacqueline was 15 she got into drug and alcohol problems and gave their parents a lot of problems. She said that eventually Jacqueline left home “and was sleeping on the floor of known criminals in Glenroy with a friend of hers and became involved in selling drugs”. She said that her parents “called the police who found her and contacted the Courts as she was then classified as uncontrollable”. At the time (in 1988) her husband, Peter Stewart, went to Court for them to become Jacqueline’s “custodians” as their parents could not control her and she faced being put in a home. After living with them for 10 or so months Jacqueline resumed living with her parents. By this time Jack, who had medical problems, had stopped drinking. Jack was helped by a psychiatrist who he saw at the end of 1987.

As to this evidence, Jacqueline denied having drug and alcohol problems at the age of 15 and that she had slept on the floor of known criminals and was involved in selling drugs. She said that her parents called the police once. The police visited her at work and searched her bag.

In fact, Jacqueline said, she left school in early 1987 at the age of 15 and began working at Coles New World in Gladstone Park. Her relationship with her parents deteriorated as they often argued about things such as her curfew and the number of nights she stayed out late each week. Her parents told her they thought she was a heavy drug user, which angered her as she was not. However, in late 1987 her parents applied to the Court in relation to her guardianship, and in early 1988 Robyn and Peter were appointed her guardians and she moved into their house.

During these times Amanda and Jacqueline remained close and saw each other almost every day. Jacqueline saw her parents approximately three times a week when they visited Robyn’s house. Their relationship improved over time and after about 10 months Jacqueline moved back to her parents’ home.

I accept Jacqueline’s evidence on these matters. The evidence indicates the not unusual situation of mutual difficulty in the relationship between parents and a teenage child, a situation which can strain tolerance and patience and require considerable forbearance and understanding. It would seem that those factors were present in sufficient degree, with the assistance of Robyn and her husband, to work through the situation. The end result reflects favourably on all.

I interpolate that in about 1986 Alison moved to Melton with Brad Petersen, whom she married.

Robyn then said that as her sisters reached adulthood “there were occasions where Amanda tried to kill herself”. She then instanced “an overdose of drugs and also by driving her car into a tree in the front yard of the family home”. As to this evidence I note that at one point in her affidavit Alison blandly and without any particularity said that Amanda “tried to kill herself several times. She was unwell and suffered from mental illness”. She then said that Jacqueline “was made a ward of the State as she was involved with the use of drugs”. Robyn also said that on one occasion Jacqueline overdosed on drugs, adding that at one stage one twin and then the other were in Royal Melbourne Hospital in successive weeks. Robyn added that Amanda once told Alison and herself that Jacqueline and Amanda “were the only two sisters as they were blood and we were not”. As to this evidence, Jacqueline agreed that on one occasion, when Amanda was around 15, she (Amanda) attempted suicide by overdosing on migraine medication. Otherwise Jacqueline denied that Amanda had tried to kill herself by driving her car into a tree. Then, as to the allegations concerning herself, Jacqueline said that she had never overdosed on drugs. She said that she was hospitalised at the age of 18 after a friend had put motor oil in her drink at a party. I accept Jacqueline’s evidence.

Robyn said that over the years their father did “so much for us girls”. She gave as an example fixing her carport and painting her home and a lot of work on Alison’s first home. She also said that their parents bought “each of the three girls” a car. Their father also did some work on Jacqueline and Peter’s home. As to the work on the carport, in her oral evidence in chief Robyn explained that she and her husband paid for the materials, but did not pay her father for his labour. Alison gave no evidence on such matters. Jacqueline denied that their parents bought Amanda and herself cars. Rather, Jacqueline said, their mother lent them $2000 to purchase a car, which amount Jacqueline repaid. Jacqueline also denied that her father did work on the home she shared with Peter, although on one occasion he erected a trellis fence in the garden. Neither Robyn nor Jacqueline were cross-examined on this evidence. The evidence indicates that their father assisted with some odd jobs, as a father might. On the matter of the provision of cars I accept Jacqueline’s evidence which deals with the situation of Amanda and herself. I accept Robyn’s evidence as indicating the situation of herself and Alison; although the extent of the benefaction was not stated it is reasonable to suppose that it was relatively modest.

None of the matters referred to above should disguise the fact that until the death of Colleen in 1995 relations within the family were good. Robyn so described the relationship with her sisters; she thought they would always be close. Robyn said that she had bonded a lot closer with Jacqueline after she had lived with her in 1988, although for her part Jacqueline said that she did not have a good relationship with Robyn and that she was never close to Robyn after she left home when Jacqueline was about five. This difference or perception of the relationship may be explained, I consider, by the difference in age which is likely to have affected the nature of the relationship, by the effect of events over the years and by the stress of this proceeding on Jacqueline.

During her teenage years Amanda lived at home with her parents with whom she had an extremely close relationship. They enjoyed their time together and at weekends frequently went on day trips to the country. Jack and Amanda shared a love of fishing and woodwork and enjoyed time together on such things.

Robyn said that although Amanda did not do that well at school she did the VCE year and, school being close by, she came to Robyn’s home nearly every lunch time. Robyn thought they grew close.

Amanda left school in 1990 at the age of 18. After leaving school she had employment which Robyn described as follows. She became an apprentice aircraft mechanic with Ansett which “didn’t last long”, then had a couple of jobs, and then worked for a week or two as a detailer of motor cars. Overall, Robyn said, Amanda’s employment history was “very short”. She never left home and relied on her parents for support in all sorts of ways. Amanda was receiving unemployment benefits when her mother became ill in 1994, as referred to below.

In 1991 Alison had her first child Stephanie. When Alison returned to work and when she later went to America for two weeks, Robyn, Jacqueline and Amanda helped look after Stephanie.

In 1992 Robyn separated from her husband, divorced and moved to Ferntree Gully where she continues to live with her partner Michael with whom she has been in a de facto relationship for 15 years. After the move to Ferntree Gully Robyn saw her parents less frequently, Jacqueline saying that the frequency was once a month while Robyn said it was more than that and that she rang daily. Nothing turns on the frequency of Robyn’s visits.

Alison’s second child, Candace, was born in 1994. When Candace was born Jacqueline lived with Alison for three months. According to Alison, at this time Jacqueline was roaming because she did not like the rules at her parents; I interpolate that after returning to live with her parents in 1988 Jacqueline remained living with them until 1994 when she was approximately 22. Alison said that Jacqueline loved her children, lived peacefully at the home and that she could not fault the way Jacqueline was with her children. Her living there was “fine”. After three months Jacqueline moved to rental accommodation in Northcote where she lived on her own.

In this period Jacqueline visited the family home approximately four times a week and saw Amanda a further three times a week at her (Jacqueline’s) house. Robyn and Alison visited the family home, Alison less often than Robyn.

Late in 1994 – I am told in October - Colleen became ill with pancreatic cancer. Following an operation in November and a related infection in January 1995 she was discharged home with a life expectancy of six months. She refused further treatment and died at home on 1 June 1995.

When Colleen was discharged home Amanda, who had never left home, cared for her. She changed her mother’s dressings, bathed her and dressed her and carried out the household cooking and cleaning. Jack was emotionally distraught and unable to cope with household work. Jacqueline said, and I accept, that their parents felt greatly indebted to Amanda for her support. To assist in making ends meet at this time Alison arranged a carer’s pension for Amanda, which came through the day that Colleen died.

In late January 1995 Amanda commenced a relationship with a man called Steven who moved into the family home in about March 1995. Steven was jealous of Jacqueline’s close relationship with Amanda and Jacqueline did not get along with him. As a result, Jacqueline’s relationship with Amanda deteriorated and they rarely spoke.

Until Colleen’s death the relations within the family were good. It seems however that Colleen had been a unifying influence and with her loss and Jack not being in good health the family “fell apart”, as Alison described it. What had been the usual family interaction deteriorated over time. It is necessary to trace the course of events following Colleen’s death and to those matters I now turn.

Jack was devastated by Colleen’s death and suffered depression. He took to sleeping on the couch, no longer wishing to sleep in the bedroom he and his wife had shared. Amanda continued to live at and run the household. She thus enabled Jack to get through the period after Colleen’s death.

Shortly after Colleen’s death Jack told Jacqueline that he considered her responsible for her death by reason of having caused her undue stress in the last few months of her life, and he refused to speak to Jacqueline. However at about the end of 1995 Jack wrote to Jacqueline stating that he was wrong in saying that she had caused her mother’s death. As a result Jacqueline’s relationship with her father improved and she saw him almost daily.

Amanda became pregnant about one month after Colleen died. After finding out that she was pregnant she ended her relationship with Steven, following which she and Jacqueline became close again and saw each other almost daily. At this time Amanda told Jacqueline that she only commenced the relationship with Steven to keep her parents happy as she was gay. She also said that she wished to terminate the pregnancy, and she did so, Jacqueline supporting Amanda in the process. However the combined effect of the death of her mother, looking after her father, and the pregnancy and its termination, led to Amanda suffering depression for which she was diagnosed and commenced taking anti-depressants. During this period Jack and Amanda rarely left the house, spending their time watching television and building furniture in Jack’s shed. They became heavily reliant upon each other for mutual emotional support.

I note that in a chronology prepared by counsel for the plaintiff there is reference to an undated will of Jack in 1997 with the statement “Residue equally between children”. The will was not produced to me. While I did not understand counsel for the defendant to take any issue with this reference I know no more about the undated will than what is stated in the reference.

On 30 January 1998 Jacqueline gave birth to a child Jake Micevski. She ceased work soon after Jake’s birth. On 26 December 1998 Jacqueline married the father of the child, Peter Micevski. In late 1999 they separated but have remained friends. It is convenient to mention that Jacqueline has had two further children by Peter Micevski, Nadija now aged 7 years and Sebastian aged 5. Notwithstanding the birth of Nadija and Sebastian, Jacqueline said that she and Peter had not got back together since their separation, explaining that although they see each other she is gay and they have no physical relationship, they had only had “a physical relationship” three times which resulted in the three children. I have no hesitation in accepting her evidence on this. When she gave this evidence in cross-examination she manifested deep emotional stress and difficulty in coping with her sexuality and circumstances generally.

Jacqueline said that following their mother’s death Robyn visited the family home approximately once a fortnight rarely staying longer than about 10 minutes which annoyed her father and Amanda. She also spoke to them on the phone approximately once a week. Jacqueline said that Alison rarely saw or spoke to Amanda or their father following their mother’s death.

In about 1999 Amanda underwent a breast reduction. Jack cared for her following the operation. Jacqueline assisted by changing Amanda’s dressings.

In early 2002 Jack decided that he wanted to move from the Gladstone Park property. He told Jacqueline that he wanted to move because the house was becoming run down and he found it difficult living there with the memories of Colleen. He also said that he no longer felt safe living there due to the high number of immigrants moving to the area. Jacqueline said that in early 2002 their father gave Amanda money which she used to purchase a block of land at 33 Heritage Drive, Broadford. Soon after this Jack sold the family home in Gladstone Park and moved to a rental property at 12 Donaldson Street, Broadford where he and Amanda lived for a year. Shortly after, Jacqueline moved into a rental property next door to Jack and Amanda. Whilst living at the rental property Amanda had a kit home built on the block of land.

The above was Jacqueline’s evidence. With the assistance of some documents in Exhibit F and other evidence of Jacqueline the following appears a reasonable summary of the steps and events in the matter of the sale of the family home and purchase of the Broadford property and erection of the kit home.

On 14 March 2002 Jack sold his Gladstone Park home (of which he may be assumed to have been the sole proprietor since the death of Colleen) for $170,000 payable by a deposit of $8,500 and the balance on 14 May 2002. That contract having been entered into, on 22 March 2002 Amanda entered into a contract to purchase 33 Heritage Drive, Broadford for $45,000 payable by a deposit of $4,500 and the balance on 14 June 2002[9].
[9]The land was referred to in the contract as Lot 13 on proposed Plan of Subdivision No 446869P and was described as Lot 13 Heritage Drive, Broadford. On registration of the transfer on 4 June 2002 certificate of title volume 10640 folio 856 issued in Amanda’s name as sole registered proprietor. The property is known as 33 Heritage Drive, Broadford.

A quotation was then obtained for the building of a house on the 33 Heritage Drive property. The quotation for $91,921 and dated 28 March 2002 was provided by Swenrick Building Constructions Pty Ltd. The quotation is addressed to Amanda and also bears the name and phone number of Peter Micevski; I find that the involvement of the latter was no more than by way of assisting Amanda.

It is apparent from invoices that Swenrick was engaged to build the house and that it did so for a cost of $91,809[10]. It appears that initially a deposit of $2,000 was paid on 2 April 2002 and that works commenced on site in August following completion of the purchase contract. The works were completed by late November 2002. The house was built to lock up stage. I note that the invoices, and a letter from Swenrick advising completion, were addressed to Amanda.
[10]In her evidence Jacqueline said that the cost of building was $96,000. I do not know how that figure was arrived at.

The sale of Jack’s Gladstone Park property was duly settled on 14 May 2002, and the purchase of 33 Heritage Drive was duly settled on 30 May 2002. Pearsons, solicitors, acted for Jack on the sale and for Amanda on the purchase.

From the proceeds of sale of the Gladstone Park property Jack received the following:

(a)$5,053.95 – balance of deposit.
(b)$42,335 – transferred by Pearsons to “your purchase file”.
(c)$121,987.10 – cheque to Jack.

On settlement of the purchase of 33 Heritage Drive an amount of $42,485 was payable after allowing for the deposit paid of $4,500. The settlement statement records that the amount paid at settlement was derived as to $150 by monies received from Amanda and the balance being the amount referred to above as transferred from the Gladstone Park sale proceeds “as authorised by JR Peters”.

It is apparent from the fact that Amanda was not employed, and as I find had no savings or other asset of an appreciable nature that would have enabled her to pay for them, that the building costs were paid by Jack out of the proceeds of sale of the Gladstone Park property.

However, as mentioned, the house had only been built to lock up stage. Further works were required, as to which Jacqueline referred to plumbing, painting, carpeting and a landing, before Amanda “could get the letter of occupancy”. She thus borrowed money to enable the house to be completed. The loan, of $21,600, was obtained from the Commonwealth Bank in January 2004 on the security of a mortgage granted by Amanda over the 33 Heritage Drive property and which was registered on title on 18 February 2004. Together with interest of $27,454.78 the loan was repayable by 355 monthly instalments of $138 with a final repayment of $64.78, a total sum of $49,054.78.

Following completion of these further works Jack and Amanda commenced living at the property. According to Jacqueline this was in about March 2004. It makes no difference to the case whether residence had first commenced in 2002 or 2003.

At this point it is appropriate to refer to evidence of Robyn and Alison, and also of Jacqueline, as to what transpired following the death of their mother.

Commencing with Robyn, she said that at first her father and Amanda got on alright although he chastised Amanda for sleeping when there were chores to do. As the years passed their personalities changed. Amanda was smoking dope which changed her personality and Robyn felt that she “was always walking on egg shells around her”. One day things would be alright, whereas the next day Amanda would not speak to her or would yell at her, and Robyn would be alienated for a time. When she asked her father what she had done to cause this he would say not to worry about it, that Amanda would get over it, or that Amanda would not tell him. As time went on her father would have a go at Robyn saying that she had upset Amanda by how she was acting. He would have a go at her for something that she or her partner Michael had said, that Amanda had twisted around in her mind. Gradually her father began to believe whatever Amanda said to him, whether it was true or not.

As to this, Jacqueline denied that Amanda smoked marijuana but she sometimes drank heavily after their mother died. She said that her father and Amanda often said how much Robyn annoyed them and that they wished she would leave them alone. Further, as far as concerned Amanda influencing her father, he was a strong willed man who was not easily influenced.

In my view this evidence reflects, even accepting Jacqueline’s evidence, family members having difficulty coping with one another in the stresses resulting from the loss of Colleen. While Robyn presented as a realistic and level headed person in the way in which she gave evidence, and doubtless was a loving daughter and sister, Amanda and Jack had their personal and emotional difficulties which Robyn had difficulty coping with. And, living together and being conscious of Amanda’s emotional and personality shortcomings and inability to be independent and self supporting, Jack may have been inclined to protect her. All this was exaggerated by his own sensitivity and loneliness without his wife whose place in a sense Amanda came to fill. I make these observations having considered all of the evidence which I do not set out but which I do not overlook.

Robyn continued that she and Jacqueline saw each other and had good relations. However, after Jacqueline married “things began to change slowly”. She was not invited to Jake’s christening because Amanda had said that if she were she would not attend. I note that Jacqueline did not deny this. Further, whereas in the first couple of years after Colleen’s death, Jack and Amanda would come for dinner and Robyn and Michael would go to their place for dinner weekly or fortnightly, and Robyn would ring every day, after a few years this petered out. Robyn said that no matter what they said or did they were wrong and received abusive phone calls.

As to this evidence, Jacqueline said, as mentioned above, that her father and Amanda spoke about Robyn annoying them. She also denied that her father and Amanda visited Robyn fortnightly for two years, as Amanda told her that she and her father stopped visiting Robyn and Michael approximately two months after their mother’s death. The truth of the matter, I consider, is that the frequency of visits reduced more quickly, and was less, than Robyn stated.

Robyn said further that after a while she noticed that her father was not seeing his bowling friends or a couple of ladies he had met earlier. He seemed to be at home and he and Amanda’s thinking seemed the same, and he started deferring decisions to her as though she were Colleen. She (and Alison) said that gradually Amanda took charge of his affairs including financial ones. She also let him drink again, even though his surgeon had told him in 1987 that it would kill him. When Robyn raised the issue of drinking, Amanda said that it was his choice. While that was so Robyn felt that Amanda should not have been supplying him alcohol. In her evidence Jacqueline denied these allegations. I mention only that she said that her father changed bowling clubs a few times, that he told her that he did not have lady friends, and that Amanda assisted her father in financial matters but did not control him. He was a very strong willed man. Further, Amanda only supplied alcohol after Dr Forster told her father that he could drink one light beer a day. As to these differences, I am satisfied that Robyn has embellished the actual situation. It may be that Robyn was frustrated in the circumstances but I do not accept that the situation between Amanda and her father was as she described. I accept Jacqueline’s evidence. I find that Jack exercised his own mind.

Robyn continued by observing that whereas her father had always holidayed a few times a year, he did not do so after Colleen died. Alison gave the same evidence. It was not clear what issue that went to, but in any event I accept Jacqueline’s contrary evidence on this aspect.

At this point in her evidence in chief Robyn moved to the time in 2002 when she discovered that her father had sold the family home and moved to Broadford. She had no prior knowledge of her father’s intentions in this respect and was informed of the move by a message on her answering machine including advice that contact was by Amanda’s mobile phone number. I accept that evidence, and that Robyn contacted Alison who had not been aware of the move. On then contacting her father he said that it was his business and that he could not live with the memories in the house. He said that he had put a kit home on the land, expressed his concerns about what would happen to Amanda in the event of his death, she being on a carer’s pension and likely to go on a disability pension as she had back problems. He said that he had desired to ensure that, in conjunction with the shares of his estate to his other children, he could look after Amanda by granting a seven year right to remain in the family home but that greatly concerned Amanda and when he sold the home he put everything in her name so that she would be looked after. While feeling deeply hurt by her father’s decision Robyn was more annoyed by not having been told beforehand. She understood and accepted his decision. I accept Robyn’s evidence on this matter. I also find that Jack deliberately did not want Robyn and Alison to know of his planned actions before they were carried into effect.

Thus far I have not referred to Alison’s evidence in relation to the period from the death of her mother to 2002 when her father sold the family home. In her affidavit she said that Jacqueline and Amanda arranged the sale. At that time her father was not speaking to her. She said, as though to explain why he was not speaking to her, that Jacqueline and Amanda prohibited him from calling Robyn and herself for the last couple of years of his life. She said further that at times Amanda showed that she did not like her and that Amanda had said that Robyn would not be attending family events such as Jacqueline’s daughter’s christening. Within the first couple of years after her mother’s death she was at times able to speak to her father, however as time went by she found that Amanda and Jacqueline would stop him from speaking to her. She said further that they would not let her father contact her or let him receive visitors.

There are several things to note about this evidence. I reject as false the assertion that Jacqueline and Amanda arranged the sale, and find that Jack did so. I also reject her evidence that Jacqueline and Amanda prohibited their father from speaking to Alison. I accept Jacqueline’s evidence that he was a strong willed man who made his own decision to cease contact with Robyn and Alison. Indeed the truth of the matter, and an accurate insight into the relationship, was disclosed by Alison when she was cross-examined on her evidence that her father was not speaking to her at the time of the sale of the Gladstone Park property in 2002. She was asked:

“Why was that? --- Because my father cracked it with me because I rang him up to ask him over for my daughter’s birthday instead of sending him an invitation in the mail.
You then go on to say in your affidavit in paragraph 15: ‘Within the first couple of years after my mother’s death I would at times be able to speak to my father. However, as time went by I found I would be stopped from speaking to him by either Amanda or Jacqueline. Amanda continued to live with him over this time?’ --- Yes.
You admit that your relationship with your father deteriorated and you point the finger at Jacqueline and Amanda for that? --- Yes. When they answer the phone saying that my father doesn’t want to speak to me, or ‘doesn’t want to own you any more’ I would say that.
Of course, the corollary of that is your relationship with Jacqueline and Amanda was probably even worse than your relationship with your father? --- Because they took it upon themselves to take Dad’s side so yes.
You would not suggest for a moment that there was even a cordial relationship between you and Amanda certainly from 2002 onwards and possibly before that, I suggest? --- Before that, yes. After Dad and I had the fight, no, and then when I got the phone call from Jacqui and Amanda to say Dad was in the hospital the relationship started again, yes.
When you refer to ‘when Dad and I had the fight’, what period of time are you talking about then? --- Approximately – maybe three years, maybe. I don’t take account of how many days my Dad and I didn’t speak.
That’s three years from when? --- I was living in my house in Mill Park so after Mum died – look, honestly, I don’t take an account, like I said, the day that Dad and I had a massive fight.
But there was a serious fallout that resulted? --- It wasn’t serious. My Dad just didn’t talk to me because he misunderstood something. That’s not serious.
It resulted in you not speaking to him for a number of years? --- Because I was stubborn just as he was.
The fact that you didn’t speak to him for some years was in your view not serious? --- No, because I still had friends that lived in the area. I knew he was okay and I knew what he was doing. I had people checking up on him so it wasn’t that serious.”

I have set out this evidence as it is inconsistent with her affidavit evidence as to the reason why her father did not speak to her. In short, she was as strong willed and stubborn as he was and therein lay the reason for their not talking. I find that Jacqueline and Amanda did not prohibit their father from speaking to Alison, or Robyn, and that in these matters he acted of his own free will, and that Jacqueline and Amanda did no more in their statements than reflect his wishes. I further find that Alison’s affidavit evidence was false, designed in this and other respects in which Robyn joined to cast aspersions on Amanda, Jacqueline and their father to lead the court from the truth and also to seek to indicate injustice or unfairness in respect of them. I reject the allegations about letting their father drink, taking charge of their father’s financial affairs, preventing him going on holidays and not letting him have contact with Robyn or Alison or receive visitors.

Proceeding on, in late 2002 Amanda and Jacqueline discovered that their father had been drinking heavily when they found a number of empty liquor bottles at the house. Their father saw a psychiatrist in Shepparton who diagnosed Parkinson’s disease and advised he could have one light beer a day. Their father admitted himself to a mental health facility in Shepparton, wanting to control his drinking. He returned home after eight weeks. Amanda kept a close eye on his drinking to ensure he had only one light beer a day.

Robyn said that in October 2002, after several times being put off from seeing him, her father visited her. He looked terrible and she was subsequently informed he had had a nervous breakdown and been in hospital and not on holiday as she had been told earlier in the year (around the time of the sale of Gladstone Park and move to Broadford). She was angry at not having been informed of her father’s health. She further said that Amanda later told her that she believed that if she had told Robyn of his ill health Robyn would have tried to stop the sale of the Gladstone Park house so that she (Amanda) would not receive all that her father had promised her; I note that neither Robyn nor Alison, who also gave the same evidence, said when Amanda made this statement. For one thing, by late 2002 the house had been sold and Heritage Drive had been purchased and a contract to build entered into and construction was close to or had been completed. Thus the die was cast. It may be that at some time Amanda said to Robyn (and Alison) that she did not inform them of these events because she was fearful of Robyn interceding to stop them, but I do not accept that such concern was a reason not to inform them of their father’s ill health in late 2002. Further, I accept Jacqueline’s evidence that their father, Amanda and herself had decided not to tell Robyn about his health as he did not want her bothering him.

Nevertheless, Robyn went on in her affidavit to say that after thinking about what had gone on overnight she rang Amanda saying that she was upset about the way she and Jacqueline had handled the matter. She said that Alison and herself were part of the family, that she loved Amanda and Jacqueline but if they were not offered the respect they deserved, her place in the family was compromised. She asked Amanda if Jacqueline was taking drugs “as this had been hinted at in a previous conversation”. The next day she received an abusive telephone call from Jacqueline in which they had “a terrible falling out”. In the conversation Robyn said that she loved each member of the family but could not stand being treated with such disrespect. I interpolate that Jacqueline agreed that she had this falling out with Robyn, stating that she was insulted by the allegation of drug taking.

After the conversation with Jacqueline, Robyn did not hear from her father, Amanda or Jacqueline “for some time” except for a telephone message from her father on her answering machine in which he responded to her Christmas card, stated that he had received the letter she had sent him, and that he wanted to be left alone. Robyn respected his wishes. A copy of the letter which Robyn had sent to her father is an exhibit to her affidavit; it reflects a loving daughter concerned for her relationship with her father and his welfare.

Thus matters continued with Robyn and Alison having no contact with their father, Amanda or Jacqueline.

In 2003 Amanda and her father made their wills.

I referred earlier to Jacqueline living at rental premises in Donaldson Drive, Broadford. At that time she was on the waiting list for a Housing Commission house in Broadford. The Commission made a mistake and gave her a house in Albert Street, Kilmore, which she had to take. She could not afford the rent and was evicted. She had nowhere to live so, in 2004, Peter Micevski rented a property at Dry Creek Road, Kilmore East as accommodation for her and the children.

In June 2004 Amanda underwent a lumbar discectomy and was confined to bed for three months. Jacqueline nursed Amanda during this time and for this purpose moved into the Heritage Drive property. Her children stayed at the Dry Creek Road property in the care of Peter Micevski. During the three months Jacqueline was between the two properties.

In October 2004 Jack had a nervous breakdown and was admitted to the Northern Hospital where he was diagnosed with alcoholic dementia and suspected paranoid schizophrenia. Jacqueline rang and advised Robyn and Alison and said that their father wanted to see them. Robyn and Alison visited their father in hospital. The four sisters saw each other and got on well. After a period of days Jack was moved to Kilmore Hospital from where he was moved to the Caledenian Nursing Home on 30 December 2004 and where he remained until 1 July 2005 when he was transferred to Northern Hospital where he died on 10 July 2005.

Robyn said that during this time she discovered that her father had lost control of his bladder, often went without eating or showering, that Peter Micevski often showered him, and that there were times when Amanda and Jacqueline locked him in the house to prevent him going to neighbours and asking for Panadol. Of these allegations Alison said that her father told her that Amanda and Jacqueline had stopped him from leaving the house and asking for Panadol. Jacqueline denied these allegations; they are not established. In any event I do not consider (if it was meant this way) that Amanda or Jacqueline are to be criticised if Peter Micevski assisted their father with showering or that he suffered a loss of bladder control. Each matter is of a kind that is well explainable.

I accept that when in care in hospital Jack accepted that he could no longer drink.

While Jack was at the nursing home Amanda visited him every day. They enjoyed talking and playing scrabble and Amanda often drove him to see Jacqueline. Jacqueline saw him every day. Robyn and Alison visited him at the nursing home about once a fortnight.

When Amanda died on Saturday 23 April 2005 Jack and Jacqueline were devastated. On that day Robyn visited her father who was very upset and teary and said that “It was all for nothing, I did it all for nothing” referring, as Robyn thought, to the move to Broadford and putting the property in Amanda’s name.

Jacqueline and her children moved into the Heritage Drive property in the week following Amanda’s death. They continue to live there. Jacqueline said that her father “organised a paper with his solicitor to relinquish [his right to occupy] the house”. She thought Osborne & Osborne had the papers; they were not produced. It is possible that Jacqueline was confused as to this. However, I accept her evidence that as soon as Amanda died their father arranged for the powers of attorney in her (Jacqueline’s) favour which were prepared by Osborne & Osborne and duly signed on 28 April 2005.

Jacqueline handled the arrangements for Amanda’s funeral.

Following Amanda’s death Robyn and Alison visited their father regularly, at least every two weeks but often weekly. It was some distance to travel, particularly for Robyn. They often visited Jacqueline at the same time. On one visit Jacqueline gave them some family mementos including photographs of their father.

On 1 July 2005 Jack became ill and was transferred to the Northern Hospital. Following an operation on 5 July he died slowly on 10 July. It is evident from the affidavits, which mercifully and sensibly in this respect were not cross-examined upon, that great difficulty was experienced in coping with the stressful and emotionally fraught situation during the gradual process to death. Not only were these adopted women losing their father but only a few months before had lost a sister in tragic circumstances which for Jacqueline (being a twin and very close) was a particularly heavy blow. As with events at the hospital I do not detail events at the funeral which also reflect unsettled emotions.

As mentioned earlier, the administration of the estates of Amanda and her father was handled by Osborne & Osborne. They advised Jacqueline to see the Commonwealth Bank to have Amanda’s loan placed in her name. This was achieved by title to the Heritage Drive property being transferred to Jacqueline and Jacqueline granting a mortgage to secure repayment of the loan. The necessary instruments, including a discharge of Amanda’s mortgage, were lodged at the Office of Titles on 28 October 2005.

Criteria under s 91(4)

I now refer to the matters I am required to consider under s 91(4). For this purpose I will regard “the deceased person” as Amanda and Jack, in view of both estates being in question, and notwithstanding that provision could only be ordered out of Amanda’s estate.

(e) Family or other relationship

This is covered by the above discussion. In broad summary, until Colleen died there was a good relationship within the family. Unfortunately things declined thereafter, in consequence of circumstances and personalities. After not too long, contact between Robyn and her father petered out, he being content with, indeed desiring, this. In Alison’s case, her clash with her father produced a mutual determination to have nothing to do with each other, and they did not for years. Jack did not wish to see Robyn or Alison until towards the end when he was in ill health in hospital and asked to see them and they commenced visiting him. As Amanda lived with Jack it followed that there was limited contact with her, as indicated above.

Further, Robyn and Alison understood why their father had provided for Amanda as he did, and did not object to that in principle. Difficulties between Robyn and Alison on the one hand and Amanda on the other hand were, I consider, rather the product of her increasing closeness to their father, her emotional nature, and that she (as they considered) was an obstacle to them seeing their father and came (with Jacqueline) to have a role in his life and affairs they did not enjoy, and all of which conduced to unhappiness and resentment. It was not until the sisters met up in late 2004 that there was a restoration of relations. But it was short lived being concluded with stormy scenes when Jack was dying and there being no relationship since then.

(f) Obligations or responsibilities of deceased

This aspect can be postponed until I come to set out the basis on which the applicants claim to be entitled to provision out of Amanda’s estate. That is the only basis on which it is suggested that Amanda had an obligation or responsibility to Robyn and Alison. It is seen that that obligation or responsibility is founded in the responsibility that Jack would have been under if he had died possessed of the Gladstone Park property or its proceeds.

As to Jacqueline, any obligation or responsibility of Amanda towards her would arise from her mutual support and life-long very close relationship, in particular nursing Amanda in 2004 and supporting Amanda and their father over the years after their mother’s death.

(g) Size and nature of the estate

I have already referred to the size and nature of the estates at death.

I have set out the assets and liabilities of Amanda’s estate at [8]. In now referring to the position of the estate at the time of the trial it is important to bear in mind that Jacqueline has personally taken over the Commonwealth Bank loan and for that reason at least title to the Heritage Drive property was transferred into her name as beneficiary under Amanda’s will. Amanda’s estate had no capacity to repay the mortgage unless the property was sold and the proceeds applied in discharge of the liability. Clearly Jacqueline wished to retain the property for the accommodation of herself and her children.

The transfer of the property into Jacqueline’s name does not affect the ability of the Court to order provision as it thinks fit as the proceeding was commenced within six months after the grant of probate of Amanda’s will[11]. Doubtless for this reason, in stating the position of the estate at trial, Jacqueline included the amount owing to the Commonwealth Bank as a liability of the estate. For present purposes it is correct to so regard it. Thus approaching the matter Jacqueline deposed that the assets and liabilities of the estate at the time of the trial were:
[11]Section 99.

Assets

(a)       33 Heritage Drive

$260,000

(b)       Household contents – no commercial value

Liabilities

(a)       Commonwealth Bank – Economiser Home Loan

$26,575.49

(b)       Mitchell Shire - rates

$3,109.79

(c)       Defendant’s solicitor’s costs of proceeding to commencement of trial, approximately

$28,900

$58,585.28

In addition Jacqueline has paid the following amounts, which must be brought to account in her favour:

(a)       Commonwealth Bank loan repayments

$2,417.00

(b)       TXU – electricity

$416.77

(c)       Osborne & Osborne - probate

$2,202.80

$5,036.57

To these amounts must be added the defendant’s costs of the trial estimated at $6,000 or so.

Taking all these figures into account produces a net estate in the order of $190,000. As to the reliability of that figure however I note that the estimated value of the Heritage Drive property is taken from a council rate notice. That is, it is the rated capital improved value. Jacqueline expressed concern whether that was realistic given that there is no garden, just the house. And although she had spoken to an estate agent no other evidence of value was led.

Finally, I understood counsel for the plaintiffs to proceed on the basis that their costs would be in the same order as the defendant’s, namely $35,000 or so overall. That costs were at this level was confirmed by counsel for the defendant who in final address referred to the costs for each party being in the region of $35,000/$40,000.

(h),(i) and (j) Financial resources and needs, disabilities and age

I deal in turn with the plaintiffs and the defendant.

Robyn

Robyn is aged 50, in good health and has lived in a defacto relationship with her partner Michael (aged 42) for some 15 years. It is to be inferred from the evidence that he is in good health. She has no children; Michael has one child, a daughter. They live in the house at Ferntree Gully which Robyn acquired with her matrimonial property settlement; the property is registered in the names of Robyn and Michael.

As to income, Robyn earns a small annual income of about $5,000 while Michael, who is employed as an auto accessory fitter has a net income of $26,500, an aggregate annual income in the order of $31,500. They also had an annual dividend of $291.20 from shares valued at $8,200.

Robyn said in her affidavit that their monthly expenses were about $2,132.19, although by trial it was more, but in an amount she did not estimate. That included household expenses, mortgage repayments and child support paid by Michael in respect of his daughter.

As to assets, the house has a rated value of $255,000, and they have savings at bank of $5,818. Robyn did not know about Michael’s superannuation. Liabilities comprise $31,708 owing on their mortgage, and a credit card debt of $7,581.

Alison

Alison is aged 36, married and in good health. Her husband Brad is aged 37 and in good health. Their children, Stephanie and Candace, are aged 15 and 13 and in good health.

Alison works as a postal manager and Brad as a linesman. They have a combined annual income of $138,000 gross and $102,000 net.

Alison said that their annual expenses are about $111,480. That includes school fees of $300 or so per month for Stephanie who attends St Monica’s College and $900 per fortnight for Candace who attends Ivanhoe Grammar.

As to assets, they have their house at Mill Park which Alison valued at $320,000. They also have a block of land at Doreen valued at $150,000 which they were in the process of selling. Alison also had cash at bank of $200.

Liabilities are substantial and comprise a loan of $464,000 secured on both pieces of real estate and on which they repay $2,202 a month, and credit card debts of $50,000 being repaid at $1,200 a month. Alison acknowledged that she spent beyond her means, but deliberately so. She did not seek sympathy in this respect, indeed with an attitude of some aggression defended her approach to spending agreeing that her debts were “self-induced”.

Alison and Brad have superannuation but she had no idea what it was. She has worked for Australia Post for 10 years and Brad has been and is employed so they will have a superannuation entitlement.

Jacqueline

Jacqueline is aged 35. She is unemployed and resides at the Heritage Drive property with her children aged 9, 7 and 5. She suffers depression for which she takes medication, describing herself as not having “been the best” for the last two years. She cannot drive at the moment and relies on Peter Micevski, the children’s father, from whom she is separated but with whom she has a good relationship, to take the children to school.

As to income, Jacqueline receives a single parent’s pension of $438.92 a fortnight and maintenance of $320 a year from Peter Micevski. As to the latter, Jacqueline explained that as far as she knew Peter only worked a couple of hours a day and the $320 was “allocated through the government”.

As to assets, Jacqueline has a 1994 Mitsubishi Pajero purchased for her by Peter in September 2004 which she valued at about $10,000, and the Heritage Drive property. I referred earlier to the estimated value of this property. Of course Jacqueline’s continued holding of this property is subject to the determination of the plaintiffs’ claims in this proceeding.

Jacqueline did not give evidence of her expenses but it is clear enough from her income on which she runs a household of four that she would use all that she had. This is consistent with rates accumulating unpaid on the Heritage Drive property and her difficulty in making mortgage repayments which are now at about $200 a month. I have earlier referred to the amount owing on the mortgage and the amount of the outstanding rates. Jacqueline said that she does the best she can. It is clear that she could not afford any appreciable increase in expenses. She said, and I accept, that she is not able to pay her solicitor’s costs of the proceeding.

(k) Contribution of plaintiffs to building up the estate or to welfare of deceased

The plaintiffs made no contribution to building up the estate of either deceased or of their father’s family. As to the welfare of their father, the plaintiffs’ contribution was that of being daughters in a good family relationship which “fell apart” after the death of the mother in 1995, as and in the circumstances I have referred to above and by consequence of which such contribution to the welfare of their father or his family effectively ceased. The plaintiffs made no contribution for the welfare of Amanda other than by virtue of the relationship of sisters to the time and shortly after the death of their mother.

(l) Benefits previously given by the deceased

Robyn received the benefit of an interest free loan on the acquisition from her mother (or mother and father) of her grandparents’ family home. If the benefit was given simply by the mother as the sole owner of that property then it is reasonable to infer that her father agreed in this as he could otherwise have been expected to have received the benefit of the property on his wife’s death or to have enjoyed that benefit with her in their lifetime. Their parents gave each of Robyn and Alison a car of relatively modest amount. Jacqueline and Amanda were lent $2000 for the purchase of a car, which Jacqueline repaid.

The plaintiffs did not receive a benefit from Amanda.

Otherwise than as stated Jacqueline was not given benefits by her father. Nor, apart from the gift in her will, did Amanda give Jacqueline any benefits.

(m) Plaintiffs being maintained

Neither plaintiff was being maintained by either deceased before they died.

(n) Liability of others to maintain plaintiffs

No other person is under a liability to maintain the plaintiffs.

(o) Character and conduct of plaintiffs

It was not submitted that the character and conduct of either plaintiff disentitled her to an order under Part IV, and I approach the case accordingly.

(p) Any other matter

Neither counsel drew my attention to any matter under this heading.

Responsibility to make provision

Counsel for the plaintiffs submitted that Amanda had responsibility to make provision for the proper maintenance and support of the plaintiffs. In opening the case he submitted that the provision appropriate to be ordered was that each plaintiff receive one quarter of the estate, leaving one half with Jacqueline. Whether that or some other share or amount would be the appropriate provision will fall for consideration if I decide that Amanda had responsibility to make provision and, if so, whether she failed to discharge that responsibility in not making any provision for the plaintiffs.

Amanda’s responsibility to make provision arose, so it was submitted, in and by reason of the following circumstances. The Heritage Drive property was the principal and virtually only asset in Amanda’s estate. Save to the extent of the value added to the property by works paid for by Amanda’s loan from the Commonwealth Bank, the property and the house thereon were acquired with funds provided by Jack. If Jack had not given his money to Amanda but had died still owning the Gladstone Park property or holding the funds representing it, he would have had responsibility to make provision therefrom for his children. Thus, it was submitted, in the ordinary course of events Jack’s children would have shared in his estate. In these circumstances, it was submitted, Amanda, as the recipient of the funds representing Jack’s estate received those funds with a moral obligation to provide for those for whom Jack would have provided at his death pursuant to a responsibility to do so. As that moral obligation or responsibility obtained at death Amanda had responsibility to make provision for the plaintiffs and Jacqueline.

This submission was based on what counsel referred to as the principle in McKenzie v Topp[12]. Counsel also referred to and relied upon James v Day[13] and Keets v Marks[14]. These cases concerned claims by stepchildren where the estate of the natural parent had earlier been left to the step-parent, and the child had received nothing from the estate of the natural parent. It was held, in the circumstances of the cases, that the step-parent, as a wise and just testator, was under a moral duty to provide for the stepchild out of the estate derived from the natural parent.
[12][2004] VSC 90.
[13][2004] VSC 290.
[14][2005] VSC 172.

In the particular circumstances of McKenzie, which are very different from the present case, Nettle J found a duty in the step-parent to make provision in favour of her stepchild. The decision, of course, was one reached on, and controlled by, the facts of the case. The reasoning by which Nettle J found as he did does not, I consider, state a “principle” in the sense of a gloss upon s 91 and to be followed with such adaptation as necessary to accommodate it to different facts and circumstances in cases under Part IV. That is not to deny usefulness in consideration of the reasoning but to be mindful that these are fact cases. Being so mindful, I note that in McKenzie Nettle J said, in language appropriate to the facts of that case:

“58.     … Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.
59.     Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision.
…
60.     That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them.”

It is to be noted that in the present case, unlike McKenzie, James and Keets, the property was given to a child and by gift inter vivos, rather than by will to a spouse who was a step-parent of the plaintiff child. Further, the consideration of the children of the first marriage “standing aside” is not present, as the gift inter vivos was not amenable to being affected under Part IV and there is nothing in the facts that indicates a basis otherwise for setting aside the transaction. Finally, it is to be noted that even if the limited principle stated by Nettle J applied, the result is that the amount left by the father to the widow “may” be relevant to the question of whether the stepmother was responsible to provide for the children. As his Honour made clear, it was a factor to be considered along with facts pertaining to the relationship between the plaintiff and the testatrix and whether the plaintiff had a need for provision. In the particular circumstances Nettle J concluded that the plaintiff had established both that he had given the testatrix assistance worthy of recognition and that he had a need for maintenance and support.

Counsel for the plaintiffs submitted that the principle in McKenzie may be recast and, as recast, applied in the present case. It was to be recast as follows: Where a substantial part of a deceased estate has been derived from a person who in the ordinary course of events would have made provision therefrom for family members who, but for some intervening event, would have been persons for whom the person being the source of funds would have a responsibility to provide, then the recipient of those funds will be found to have an obligation or responsibility to similarly provide for those family members. Counsel submitted that the passing by Jack to Amanda of all of his property was of the same character as the provision by will of a remarried man for his second wife. There was thus provided a sound basis on which to hold that Amanda’s receipt of Jack’s property carried a moral obligation to provide for those for whom Jack would have had responsibility to provide.

A matter to be noted about counsel’s recast formulation is that the consequence of a responsibility to make provision follows automatically on the establishment of the factual premises. That was not the approach of Nettle J, nor could it be, bearing in mind the factual nature of the inquiry under s 91.

It is further to be noted that, consistently with this automatic consequence approach, counsel for the plaintiffs did not base their case on the nature and extent of their relationship with Amanda being one that gave rise to a responsibility to make provision for them out of her estate. Rather, as counsel for the defendant pointed out, the case was put on the different and narrower basis set out above. That did not base the obligation or duty to make provision on their relationship as sisters. In my view the family relationship cannot be ignored for it provides the circumstances in which the case arises and bears on the issue of responsibility. Indeed it is one of the matters which s 91(4) requires to be considered.

In the course of his address I sought clarification from counsel on this issue. I asked him whether he rested his case on the relationship between the sisters. I pointed out that he had not analysed the case in terms of the factors in s 91(4). In response counsel said that the relationship between the family members was significant. If, he said, the plaintiffs were totally alienated from their parents and had nothing whatever to do with Amanda and Jacqueline, they (the plaintiffs) would be in a quite different position. The case would then have been “much more difficult”. Other than to say this, counsel did not develop a submission as to the nature and extent of the relationship between the plaintiffs and Amanda or, indeed, their father.

I might add that counsel for the plaintiffs conceded that Jack had good reason to provide for Amanda as he did. That reason lay in her self evident need for care and support. She was on a disability pension, did not or could not work and needed to be provided for long term. Indeed, Robyn and Alison themselves had understood and accepted their father’s decision in this respect.

Counsel for the defendant submitted that the claim should fail, in support of which he advanced the following. First, the stepchildren cases of McKenzie, James and Keets did not stand for the wide ranging proposition contended for by the plaintiffs, and in any event were distinguishable. Secondly, and by way of contrast with the proposition in those cases that the children had let their parents’ will pass without challenge under Part IV, there was no such opportunity with a gift inter vivos. There was thus no question of Robyn and Alison having stood aside to their prejudice. Thirdly, Amanda’s receipt of benefits inter vivos from her father did not impose on her a responsibility to make provision for the plaintiffs where no responsibility otherwise existed. Fourthly, Jacqueline’s competing claim as beneficiary and her financial need, the small size of the estate, the effect of an order and the circumstances of the plaintiffs, told against any award.

I turn now to my conclusions.

Section 91 postulates a three stage process of inquiry. The Court has first to determine whether the deceased had responsibility to make provision for the applicant, secondly whether the deceased’s will makes adequate provision for the proper maintenance and support of the applicant and, thirdly the amount of provision (if any) which the Court may order for the applicant. In the present case no issue arises at the second stage as Amanda made no provision at all for the plaintiffs. Therefore the questions for determination are whether Amanda had responsibility to make provision and, if so, the amount of provision (if any) which should be ordered. In other words, even if it be held that Amanda did have responsibility to provide for the plaintiffs it yet may be that on a consideration of the relevant facts and circumstances no provision should be ordered. Further, while the inquiry as to responsibility and as to the amount (if any) to be ordered are separate and arise at different stages, yet the facts that relate to one can also relate to and inform the other.

I turn then to consider whether Amanda had responsibility to make provision for the proper maintenance and support of the plaintiffs.

Whether Amanda did have such responsibility is to be determined on a consideration of all of the relevant facts and circumstances. Those facts and circumstances include, but are not limited to, the fact that her father provided the funds for the acquisition of the Heritage Drive property and building of the house thereon. Those funds were sourced from, but were not all of, the proceeds of sale of the family home at Gladstone Park. It would seem that the balance of funds received on the sale were spent by Jack on living and other expenses. If regard was had to no other matter it might be considered that Amanda, as a wise and just testatrix with no child or other dependent, ought have left the property to her three sisters as in effect representing the transfer to them of the benefit of the family home and which their father would likely have done by his will if the property had been retained in his name. However, that consideration is but part only of the relevant facts and circumstances. Moreover, that consideration has a fundamental premise in it as to the likelihood of what Jack would have done on his death. In my view, if it be assumed that the four daughters were alive at his death, the greater likelihood is that he would have left his estate in the greater if not total part to Amanda in view of her need for protection having regard to her inability to provide for and care for herself. Nevertheless, not excluding that consideration as a factor I now refer to what seem to me to be relevant facts and circumstances.

In the first place, the fact is that for better or worse but in his judgment – the reason and wisdom of which was well understood by his other daughters – Jack acted as he did for the long term protection of Amanda. He was entitled to deal with his property in that way both legally and in the sense of the judgment of a loving and concerned parent. His intention and concern in this respect continued and was reflected in his will executed in July 2003. It was also reflected in his living with Amanda at the Heritage Drive property and their evident close relationship in which he gave her his support.

In the second place, while Jack provided the funds for the acquisition of the Heritage Drive property and construction of the house thereon, that did not represent the net amount Jack received on the sale of Gladstone Park. From the sale Jack received $169,376.05. That exceeded the acquisition and construction costs of Heritage Drive of approximately $137,000. It is reasonable to suppose that Jack applied the balance of the funds on a variety of costs and expenses. The point is that the full net proceeds of sale of Gladstone Park cannot be seen to have been applied on the purchase of Heritage Drive and construction of the house thereon. That is, the full amount of those proceeds cannot be traced through, and thus be said to be represented in, the value of Heritage Drive.

In the third place, there is the contribution made to the present value of the Heritage Drive property by the works paid for by Amanda’s loan from the Commonwealth Bank. I do not know what the amount of that contribution may be, but it took the house from lock up stage and was clearly important in facilitating occupation. It follows that I do not know the extent to which that contribution equates to, or is more or less than, the amount outstanding on the loan (now held by Jacqueline) which must, of course, be allowed off the value of the property. All that can be said is that the further works contributed to the value and that Amanda bore the cost. Thus to this extent the present value is not wholly attributable to Jack’s funding.

In the fourth place, Amanda acquired the fee simple interest in the Heritage Drive property, and held that unencumbered until she gave the mortgage to the Commonwealth Bank. There is no evidence of any agreement between Amanda and her father that restricted her right to deal with the property as she considered appropriate. At the same time it seems reasonable to infer that the understanding between Amanda and Jack was that they would live there together and that he would not be put out of the house against his will. On this basis, counsel for the plaintiff said, the property was not Amanda’s “absolutely” and that she could have been challenged by legal proceeding if she had sought to put Jack out of the house. In so submitting counsel was seeking to equate the situation in this case with the concept in McKenzie of the child standing aside and not challenging the parent’s will favouring the step-parent. The analogy does not run in the present circumstances. While it may be accepted – and it is consistent with the right of occupancy in Amanda’s will – that the understanding between Amanda and her father was that they live together and that he be able to live at the house as he desired, no repudiation of that understanding by Amanda could have given rise to a right in her sisters to claim under Part IV. Nor, Jack having acted of his free will, could they have had a basis on which to challenge the efficacy of the sale of the Gladstone Park property and Amanda’s acquisition of the Heritage Drive property. For his part Jack could have sought to enforce a right of occupancy but that is an altogether different matter.

In the fifth place, the right of occupancy in Amanda’s will was, in itself, an obviously appropriate provision in terms of its mutuality in ensuring her father’s residential circumstances and in view of his age and declining health. It could also have reflected their common understanding in that respect. Overall the provisions of Amanda’s will were consistent with her being the “absolute” owner of the Heritage Drive property.

The following further matters are also to be noted, although without disregarding all of the facts and circumstances of the family relationship.

The plaintiffs did not render Amanda any particular service or assistance of a nature or to an extent that could be said to require recognition, as in satisfaction of a moral duty, by gift in her will. Indeed the plaintiffs’ case was not put in that way, the route to success being that indicated in McKenzie. That the plaintiffs so presented their case is hardly surprising when regard is had to the fractured and distant, if hardly existing, relationship with Amanda in the years between the death of their mother in 1995 and late 2004. In short the plaintiffs neither by personal attendance or financial contribution gave any particular assistance to Amanda prior to or after 1995. It was their father who did so, with the abiding support of Jacqueline. To observe these matters is not a particular criticism of the plaintiffs but to observe the course of events as members of the family lived their lives.

The next matter is that of the relative circumstances and financial need of the plaintiffs and Jacqueline. Without repeating the relevant facts, however the matter be considered the contrast between the plaintiffs on the one hand and Jacqueline on the other hand is marked, and was readily to be appreciated by Amanda.

By character and disposition the plaintiffs present as strong and clear minded mature women. Of course Alison overspends but that is her knowing and deliberate decision made with awareness of the financial pressure thus imposed, but with her strength of character able to bear the consequences. It is important to keep in mind that to the full extent of her credit card debts, her liabilities are self imposed. Apart from that each plaintiff, and their respective families, is in good health, has a partner and a home subject to mortgage (Alison’s being much larger than Robyn’s), and an established income and earning capacity. As between the plaintiffs, Alison has a greater mortgage liability, but she and her husband have a larger income.

Further in relation to Robyn was the fact of the financial benefit received years earlier when she acquired her first home. Alison and Jacqueline received no such benefit.

Jacqueline, on the other hand, is in most parlous circumstances both health wise and financially and it is hard to see that situation improving when regard is had to her personality and emotional makeup. Although not divorced she is separated and has the most meagre income from Peter Micevski with the minimal support of the pension. At the same time it is apparent that he has been, and continues to be, a substantial back up support for her and the children, although not in a direct financial way.

To these matters there is to be added the relationship that existed between Amanda and Jacqueline. Not merely were they twins but they were extremely close and supportive throughout life including the period after their mother’s death when Jacqueline was supportive of and very close to Amanda and their father.

Then there is the size of the estate with which Amanda had to deal. No matter how much a plaintiff or beneficiary may appreciate a gift by will, the estate was small. The size of her estate, which essentially was the house subject to the mortgage, was a relevant consideration for Amanda to consider in determining on the appropriate testamentary disposition. For, if the property was to be divided between several people, such as her three sisters, almost certainly the property would have to be sold. While that would aid her sisters in terms of their receiving money, Jacqueline would not have a home and, having regard to her personal circumstances, she would not have sufficient means to buy a house without the burden of a mortgage which, having regard to her health and income earning capacity, she may well not be able to sustain.

All of these matters were of a kind that were open to Amanda to consider when she made her will. In the way that the plaintiffs put their case the question is whether the receipt of benefits from her father brought upon Amanda a responsibility to make provision for the plaintiffs. While in a general sense the proposition is understandable and, without more, might lead to recognition of a moral duty to make provision and an order for provision, yet the proposition must be considered in light of all the relevant facts and circumstances. So regarded, in my view Amanda’s freedom of testation was not burdened or limited as the plaintiffs contend. I do not disregard the proposition as stating a relevant factor as it plainly is, and was, for Amanda to consider. What I do not accept is that it controlled her freedom of testation and directed that in its exercise she was precluded from leaving her estate as she did in her will. Indeed counsel’s submission that the provision which the Court should order is one quarter to each plaintiff with the balance to Jacqueline recognises that Amanda had freedom to choose as to the extent to which she should benefit the plaintiffs. Of course counsel’s submission may be realistic in the litigation context but it is also realistic in reflecting Jacqueline’s need for financial provision.

In my view it was open to Amanda and appropriate, as a wise and just testatrix, having regard to all relevant matters, to dispose of her estate as she did. Of course she may have decided to leave a modest legacy to each plaintiff but that was a matter of judgment and not required. In short, there was no failure of responsibility or moral duty in not doing so.

Let it be assumed however that Amanda did have responsibility to make provision for the proper maintenance and support of the plaintiffs. The question that would then arise is what amount, if any, should be ordered. In that circumstance, in my view no amount should be ordered, for reasons discussed above. Those matters are to be considered in the context of an estate of a present net value of approximately $185,000 to $190,000 without taking into account the costs of the plaintiffs. If those costs were taken into account the estate would reduce by a further $35,000 to $40,000, a very small estate indeed.

Further, as matters stand at present, Jacqueline is not able to pay her own costs and is in arrears on the rates. As she wishes to continue living at the Heritage Drive property she will have to make some arrangement for the reimbursement of those costs and trust to be able to meet her expenses. If she cannot do so she will have to sell the house, but she wishes to avoid that if possible. As matters stand, that is a possibility. If it happened the amount remaining after paying the mortgage, rates and taxes and costs would be much reduced from that intended by Amanda and leave Jacqueline remaining in a parlous position in terms of her ability to obtain a house for herself and the children. Clearly she needs the full benefit of the testamentary provision.

Regarding the matter overall and having particular regard to the relative financial circumstances and age and health of the sisters, the small size of the estate and the effect of an order for provision in terms of the diminished amount remaining for Jacqueline, I am of the view that no amount should be ordered by way of provision for the plaintiffs.

The proceeding will be dismissed. I will hear counsel on the question of costs. I will make orders for the amendment of Robyn and Amanda’s name in the heading.

Actions

Download as PDF Download as Word Document

Citations

Equuscorp Pty Ltd v Wilmoth Field Warne [2007] VSC 280

Most Recent Citation

Farmer v Cowden [2010] VCC 1637

Cases Citing This Decision

9

McFarlane v Reffold [2013] SASCFC 31

Re Rattle; O'Neil; v Equity Trustees Ltd [2019] VSC 565

Re Williams; Smith v Thwaites [2017] VSC 365

Cases Cited

5

Statutory Material Cited

0

McKenzie v Topp [2004] VSC 90

James v Day [2004] VSC 290

Keets v Marks [2005] VSC 172

Assets
(a) House and land at 33 Heritage Drive, Broadford	$200,000
(b) Commonwealth Bank	$192.43
(c) Household contents	$2,000	$202,192.43
Liabilities
(a) Westpac Bank	$6.88
(b) Optus	$143.59
(c) Commonwealth Bank – Economiser Home Loan	$21,061.64
(d) TXU – electricity	$416.77
(e) Mitchell Shire – Rate Instalment	$174.00	$21,802.88
$180,389.55

Assets
(a) 33 Heritage Drive	$260,000
(b) Household contents – no commercial value
Liabilities
(a) Commonwealth Bank – Economiser Home Loan	$26,575.49
(b) Mitchell Shire - rates	$3,109.79
(c) Defendant’s solicitor’s costs of proceeding to commencement of trial, approximately	$28,900
$58,585.28

(a) Commonwealth Bank loan repayments	$2,417.00
(b) TXU – electricity	$416.77
(c) Osborne & Osborne - probate	$2,202.80
$5,036.57

[2007] VSC 280

14 August 2007