Farmer v Cowden

[2010] VCC 1637

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST

FAMILY PROPERTY DIVISION

Case No. CI-10-03003

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

AND IN THE MATTER of the Estate of MARK CHRISTOPHER SIMON FARMER, Deceased

PETER FARMER	Plaintiff
v
ANNE PAULA JOAN COWDEN	Defendant
(who is sued as the Executrix of the Estate of the late MARK CHRISTOPHER SIMON FARMER)

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2010
DATE OF JUDGMENT:	11 November 2010
CASE MAY BE CITED AS:	Farmer v Cowden
MEDIUM NEUTRAL CITATION:	[2010] VCC 1637

REASONS FOR JUDGMENT

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Catchwords: TESTATOR’S FAMILY MAINTENANCE – plaintiff the brother of the deceased – plaintiff cared for the deceased in the later years of his life – close relationship – plaintiff in a comfortable financial position – whether the deceased had a responsibility to make provision for him – extremely modest estate – defendant the former domestic partner of the deceased – deceased left his entire estate to the defendant – Administration and Probate Act 1958, section 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Pascoe	Maddocks
For the Defendant	Mr J Meagher (solicitor)	Department of Human Services
HIS HONOUR:

Introduction

1          Before the Court is an Originating Motion filed by the plaintiff on 14 July 2010 seeking proper maintenance and support of the estate of the deceased, Mark Christopher Simon Farmer.

2          Mr Pascoe of Counsel appeared for the plaintiff. Mr Meagher, solicitor, appeared for the defendant.

3          The following evidence was adduced at the trial:

• The plaintiff gave evidence and was cross-examined;

• The plaintiff tendered a Court Book comprising documents divided by 21 tabs. The tender was limited to the documents behind tabs 3-21: Exhibit A;

• The defendant gave evidence and was cross-examined;

• The defendant tendered a bill of costs of Wightons, solicitors, dated 12 April 2010: Exhibit 1.

The Background Facts

4          The deceased died on 18 May 2009. He was fifty-three years of age at the date of his death. He died of encephalopathy, and liver disease, probably related to his contraction of hepatitis C.

5          The plaintiff is the brother of the deceased. The defendant is the former domestic partner of the deceased.

6          The deceased left a Will, made 19 July 2000. He appointed the defendant as his sole executor and trustee of his estate. He left his entire estate to the defendant save for “articles” given to him by his parents, which he left to the plaintiff.

7          The defendant retained Wightons, solicitors, to apply for probate of the Will of the deceased. Probate was granted on 3 February 2010.

8          At the time probate was granted, the inventory of the deceased’s estate disclosed that the net estate amounted to $50,953.26, of which $24,000 was described as a superannuation benefit to the credit of the deceased with a superannuation fund known as Host Plus Superannuation Pty Ltd.

9          However, the plaintiff applied for the whole of the superannuation benefit. It was paid to him by the trustees of the superannuation fund. The sum paid to him was $26,715.51.

10        After the death of the deceased, the plaintiff set about calling in and collecting the whole of the estate of the deceased which essentially comprised cash monies. He applied $6,000.00 of those cash monies to pay for the deceased’s funeral expenses. He deposited the balance in an account which he opened in the name of the deceased. The balance amounts to $19,680.91.

11        The plaintiff’s dealing with the estate occurred in circumstances where the deceased told him that he had not made a will. The plaintiff, therefore, was under the misapprehension that he could deal with the estate of the deceased, and took each of the steps referred to above until he was informed by the defendant that she held the last Will of the deceased.

12        It was then that the defendant set about obtaining probate. Wightons, solicitors, rendered a bill of costs dated 12 April 2010 in the sum of $7,300.00. The defendant paid that sum herself.

13        Therefore, the remainder of the estate of the deceased amounts to $19,680.91. Both the plaintiff and the defendant say they are entitled to the whole of the residuary estate of the deceased.

The Proceeding

14        This proceeding came before me at a directions hearing. I was not prepared to allow the usual procedural orders to be made after I was informed that the residuary estate amounted to $19,680.91, and the costs incurred by the defendant as executor amounted to $7,300.00, leaving a potential net residuary estate of $12,380.91.

15        I ordered that the trial of the proceeding be heard before me as a special fixture on 27 October 2010. Both the plaintiff and the defendant were represented at the directions hearing. I indicated that some proportion needed to be struck in the preparation to be undertaken by the plaintiff and the defendant for the trial, given that the net residuary estate would be swallowed up in one gulp by legal costs.

16        I suggested that the plaintiff and the defendant simply give evidence and produce whatever documents they considered were relevant to my consideration of the issues raised in the proceeding. I was dismayed to discover that the plaintiff prepared a Court Book in excess of the requirements for trial and had incurred legal costs of some $20,000 inclusive of the day of trial.

17        Mr Pascoe and Mr Meagher are to be commended in their attempt to properly produce evidence to advance the case of each of the plaintiff and the defendant by permitting the tender of the majority of the plaintiff’s Court Book, and directing their examination-in-chief and cross-examination precisely to the relevant issues which the plaintiff and the defendant called upon me to determine.

The Plaintiff’s Case

18        The plaintiff is fifty-seven years of age. He attended Monash University, where he obtained a Bachelor of Arts degree with honours and a Diploma of Education qualifying him to teach English as a second language. His major pursuit in life has been music, and in particular, percussion instruments.

19        The plaintiff has been in a domestic relationship with Robin Wendy Wright for sixteen years. Miss Wright is the copyright manager at Swinburne University of Technology. The plaintiff and Ms Wright live together in Ms Wright’s home at 410 Clarke Street, Northcote.

20        The plaintiff composed two statements which were submitted to the trustees of the superannuation fund in support of his application that the whole of the superannuation monies be paid to him. The first statement is headed “Concerns about the ‘will’ and previous relationship”, comprising three pages, and the second is headed “Notes re Interdependent Relationship”, comprising six pages.[1]

[1]             Tab 9

21        The defendant outlined his relationship with the deceased over their lifetime. There is absolutely no doubt that the plaintiff and the deceased had a relationship of the closest kind. There is also absolutely no doubt that as the deceased’s health declined, and it was obvious that he would die prematurely of the two disease processes which set upon him, that the plaintiff committed himself to the care of the deceased.

22        What is also clear is that the plaintiff held, and continues to hold, very considerable antipathy for the defendant. Both statements suggest that in some way the defendant unjustly enriched herself at the expense of the deceased by acquiring the deceased’s interest in a property at Silvan; that there was some doubt in the plaintiff’s mind of the circumstances under which the deceased made the Will, effectively leaving his estate to the defendant; and seriously doubting that the defendant had any sincere interest in the deceased at any stage at the time of his death.

23        Indeed, the statements suggest that the defendant visited the deceased rarely. When she visited the deceased he was hospitalised and in a seriously declining state of health, and she was said to have behaved badly, warranting the plaintiff describing her behaviour as “intrusive, disruptive and inappropriate behaviour”, creating a furore on an occasion when she visited the deceased, upsetting staff at the hospital by making what the plaintiff described as a “disgraceful demand” that the deceased be placed on morphine.

24        Furthermore, the plaintiff chose to describe the breakdown in his relationship with the defendant as “a direct function of her complete lack of real, tangible

support, and our observation of and growing concern about her self-centred

and manipulative behaviour”. He went further and accused the defendant of general absence in connection with the deceased and a manifest lack of practical help also in connection with the deceased.

25        The statements were prepared as a submission to the trustees of the superannuation fund to persuade them that they should not distribute any of the superannuation monies to the defendant. The plaintiff submitted that it was his opinion that the deceased would have made considerable provisions for him in his will.

26        The plaintiff said that the monies were to be distributed 80 per cent to him and 20 per cent to the defendant. The trustees of the superannuation fund were persuaded by the statements submitted by the plaintiff, to the extent that they paid the whole of the superannuation monies to the plaintiff.

27        The plaintiff said that he believed that the defendant obtained a transfer of the deceased’s interest in the property at Silvan without making any significant payment to the deceased representing the value of his interest in the property.

28        The plaintiff said that he was certain that was so, because when the relationship between the deceased and the defendant ended, the deceased borrowed $19,000 from his mother in order to purchase an alternative place of residence. The inference intended by the evidence was that the only reason why the deceased borrowed money from his mother to undertake the purchase was because he had none of his own.

29        The plaintiff also said that, in his conversations with the deceased, he was told by the deceased that he did not have a will. The plaintiff was in the course of making arrangements for the deceased to make a will, but the deceased died before that could be undertaken. The plaintiff said that he was surprised when he was told that the defendant had a Will made by the deceased.

30        Despite the plaintiff’s disbelief that a will existed, and was in the possession of the defendant, no effort was made by the plaintiff to prevent the defendant applying for and obtaining probate.

31        The defendant did not contest the degree of commitment that the plaintiff had for the deceased, nor his integrity as a loving brother to the deceased. However, she did contest the serious allegations which the plaintiff made against her, some of which I have summarised above.

32        Nor did the defendant contest the payment by the trustees of the superannuation fund of the whole of the superannuation monies to the plaintiff. Nor did she make any claim that the superannuation monies were part of the estate of the deceased and were for her to call in and collect in her duty as the executor of the estate, and similarly, in relation to the $6,000.00 withdrawn by the plaintiff to pay for the deceased’s funeral expenses.

33        Despite the obvious antipathy redolent in the statements, the plaintiff was moderate in his oral evidence when asked to describe his understanding of the defendant’s relationship with the deceased, and the extent of her commitment to the deceased after their relationship ceased and up until the date when the deceased died.

The Defendant’s Case

34        The defendant is fifty years of age. She said she met the deceased in about 1984. They commenced cohabiting as a couple in either 1985 or 1986.

35        Their cohabitation was consistent with a domestic relationship. It persisted until about 2001, when the deceased left the property where they were then living. Their sexual relationship ended in about 1999 when the deceased was diagnosed with hepatitis C.

36        The plaintiff said that both she and the deceased made Wills leaving their whole estate to the other. The deceased’s Will was made on 19 July 2000. The plaintiff must have made her Will at about the same time. The plaintiff and the deceased were still living together in a domestic relationship at the time when the Wills were made.

37        The plaintiff and the defendant entered into negotiations to settle what they each believed to represent a just and equitable settlement of their interests in the property at Silvan. The plaintiff said that she paid some monies to the deceased, but she was unable to recall how much she paid him.

38        The plaintiff said that following the end of the domestic relationship, she continued to have a loving relationship with the deceased. She said the deceased was her best friend.

39        The defendant moved to Geelong in 2005. The deceased was living in Nar Nar Goon. The distance between the two localities is significant. The plaintiff said that she saw him monthly and spoke to him by telephone once or twice a week.

40        The defendant said that when they were in each other’s company they would go shopping and to see films. They shared an interest in animals. On occasions when the defendant went away, the deceased look after her house.

41        The defendant denied the allegations made by the plaintiff that she behaved poorly and was disinterested in the deceased. She said that the reason why the plaintiff, and persons at the hospital where the defendant was treated, may not have seen her visiting the deceased was because she usually visited him at night when there was no one else there.

42        Furthermore, the defendant said that up to the time of the death of the deceased, she considered him to be her best friend and that she believed they still had a loving relationship.

43        The defendant said she is not in good health. She suffered spinal canal stenosis which required spinal decompressive surgery. It limits the work she is capable of undertaking. She uses painkilling medication to deal with pain associated with that spinal condition.

The Financial Positions of the Parties

44        The plaintiff’s financial circumstances, and those of his domestic partner are:[2]

[2]             Tab 15

The Plaintiff’s position:

• He is a part-time library officer with the West Gippsland Regional Library Corporation earning $15,000 gross per annum.

• He owns a property at 278 McCartins Road, Foster, valued at between $230,000 to $250,000. It is mortgaged to the extent of $20,000.

• He has an investment with Australian Ethical Investments of $15,000.

• He has superannuation of $35,000.

• He owns a motor vehicle value at $22,000.

Ms Wright’s position:

• She is the copyright manager at Swinburne University of Technology. She earns $77,666 gross per annum.

• She is the owner of 410 Clarke Street, Northcote, valued at about $636,000. It is mortgaged to the extent of $30,000.

• She owns 600 Telstra shares valued at $1,596.

• She has a bank balance of $12,897.

• She has superannuation. No estimate of its current value was given at the trial.

• She owns a motorcar valued at $30,000.

45        The defendant’s financial circumstances are as follows:

• The defendant’s owns the house at Silvan, valued at $300,000. It is mortgaged to the extent of $118,000. It is rented.

• The defendant’s present domestic partner owns a house valued at $300,000. It is mortgaged to the extent of $110,000.

• The defendant works full-time. She earns $50,000 gross per annum.

• Although the defendant did not give evidence regarding her domestic partner’s occupation, I infer that if he owns a house with a mortgage that he must be in receipt of some income.

The Responsibility of the Deceased

46        Mr Pascoe submitted that when regard is had to the evidence of the plaintiff from the documents in the Court Book and from his oral evidence, that I should be in no doubt that the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff.

47 Mr Pascoe submitted that I should be satisfied that each of the considerations in s.91(4)(e)-(p) of the Administration and Probate Act 1958, when considered in the light of the evidence of the plaintiff, should satisfy me that the deceased had such a responsibility, and that proper provision had not been made by the deceased.

48        I will deal with each of the considerations in turn:

• (e) - any family or other relationship between the deceased person and the

applicant, including the nature of the relationship and, where relevant, the
length of the relationship;

There is no doubt that the plaintiff had a relationship with the deceased of the kind referred to in paragraph 21 above.

• (f) - any obligations or responsibilities of the deceased person to the

applicant, any other applicant and the beneficiaries of the estate;

The plaintiff says that the deceased had both an obligation and a responsibility to him based upon their family relationship from which the plaintiff says a moral duty and obligation are evident.

• (g) - the size and nature of the estate of the deceased person and any

charges and liabilities to which the estate is subject;

The size of the estate is modest in the extreme. There are no charges or liabilities on it.

•	(h) - the financial resources (including earning capacity) and the financial
needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

Neither the plaintiff nor the defendant could be said to be well off. However, they are both in receipt of income and both own properties. They both have domestic partners who are in receipt of income and who own properties. Both would no doubt like to have their financial circumstances improved upon, but in the setting of where life has taken them, and up to the present time, I am not persuaded that either are in significant financial need to be able to live comfortably.

• (i) - any physical, mental or intellectual disability of any applicant or any

beneficiary of the estate;

The plaintiff does not have any physical, mental or intellectual disability. His evidence suggests that he is able bodied and capable of working, and indeed, he attempted to enter a university course to improve his qualifications, evidencing capacity and motivation. The defendant has a spinal condition which may limit her working capacity, but her evidence does not persuade me that her capacity for work at her present level is impaired or that it will be for the foreseeable future.

• (j) - the age of the applicant;

The plaintiff is fifty-seven years of age.

•	(k) - any contribution (not for adequate consideration) of the applicant to
building up the estate or to the welfare of the deceased or the family of the deceased;

Neither the plaintiff nor the defendant have persuaded me that either built up the estate of the deceased.

• (l) - any benefits previously given by the deceased person to any applicant

or to any beneficiary;

The plaintiff gave evidence that a settlement of the Silvan property favoured the defendant to such a degree that the deceased was left with very little. The defendant denies that was the case. All I know from the little evidence given by the plaintiff is that the defendant is suspicious of what occurred, against the evidence of the defendant, that a settlement was arrived at which permitted the plaintiff to retain the Silvan property in consideration of a payment to the deceased.

Mr Pascoe was at pains to submit that the sum paid out to the plaintiff by the trustees of the superannuation fund must be ignored.

It seems odd that on the one hand the plaintiff would have it that the defendant has profited by favourable settlement of the Silvan property which must then come against her, yet his receipt of the superannuation monies must be ignored. I consider that to be hardly an equitable way of looking at the position of both the plaintiff and the defendant.

I am not persuaded that the defendant did profit at the expense of the deceased.

• (m) - whether the applicant was being maintained by the deceased person

before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

This consideration does not apply.

• (n) - the liability of any other person to maintain the applicant;

This consideration does not apply.

• (o) - the character and conduct of the applicant or any other person;

It is not my intention to impugn the character of the plaintiff. His devotion to the deceased is as I have already described it, and to that extent, his conduct relevant to the deceased can only be described as conduct of the highest order.

However, the deceased’s description of the defendant in the statements is, in my opinion, not a fair account of the relationship which existed between the defendant and the deceased. This has left me with a feeling of some disquiet as to the motive behind the plaintiff’s submission to the trustees of the superannuation fund in which he portrayed himself as the only worthy recipient of the superannuation monies.

• any other matter the Court considers relevant;

(p) - plaintiff obtained an enduring power of attorney to administer the affairs of the deceased;[3] that the deceased did not know he had a Will and planned to make a will in favour of the plaintiff; that the deceased’s declining health intervened to cause the deceased to be unable to execute a will; and the role which the defendant played in the life of the deceased up until the time he died.

Mr Pascoe submitted that the foregoing are matters which I should consider to be relevant in determining the question of responsibility, and proper maintenance and support.

[3]             Tab 12

Disposition

49        It is trite to say that a trial judge must recognise the importance of not underestimating the significance of freedom of testation.[4]

[4]             Grey v Harrison [1997] 2 VR 359 per Callaway JA at 363 and 366

50 Against that principle of law are observations in numerous authorities which stand for the proposition that the considerations referred to in s.91(4)(e)-(p) oblige the trial judge to reason whether the deceased had a responsibility to make provision for the plaintiff by reference to the test whether what, if any, provision a wise and just testator would have thought it his moral duty to make in the interests of the plaintiff.[5]

[5]             Blair v Blair (2004) 10 VR 69 per Chernov JA at 76, and Nettle JA at 84

51        In this proceeding, an additional question arises, and that is, whether the deceased had a responsibility to make provision for the plaintiff, the plaintiff, of course, being the brother of the deceased.

52        Mr Pascoe submitted that given the relationship which the plaintiff had with the deceased, that I should find that notwithstanding the fact that the plaintiff is the deceased’s brother, that the deceased nonetheless had a responsibility to make provision for the plaintiff.

53        Mr Pascoe referred me to Unger v Sanchez[6] in which Kaye J reviewed a number of authorities for the purpose of determining, among other things, whether the class of persons to whom a responsibility is owed is narrow and limited to a member of the deceased’s own family, that is as I understand it, to a spouse and a child rather than a mother or a father or a brother or a sister et cetera. Kaye J then summarised the position as follows:

“It follows that the role of the court, in a case such as this, is not to determine whether, in all the circumstances, the testator was under an obligation to reward the plaintiff for the care and devotion which she gave to the testator and her husband in their latter years. Rather, the services given by the plaintiff to the testator, and to her husband, are relevant in determining the existence and the nature of any duty owed by the testator to the plaintiff to make adequate provision for her proper maintenance and support. A wise and just testator’s views, as to what constitutes adequate provision for a claimant’s proper maintenance and support, would relevantly be shaped, among other things, by the conduct of the claimant to the testator during his or her life time. … .”[7]

[6] [2009] VSC 541

[7]             at paragraph 78

54        The plaintiff in that case was a neighbour of the testatrix. She adopted the role of carer and guardian to the testatrix and her husband, and formed a relationship which was so close and personal that the testatrix and her husband regarded the plaintiff as if she were their adopted daughter.

55        Kaye J considered that the evidence supported the conclusion that the testatrix had a responsibility to the plaintiff. Despite the fact that the plaintiff was in a financially sound position,[8] he did not consider that her financial position negated the obligation of the testatrix to make adequate provision for the plaintiff, because of the close bond which the plaintiff had with the testatrix and the selfless service which the plaintiff had provided the testatrix over the latter years of her life. He later described the dedication of the plaintiff to the testatrix as being quite extraordinary, one of self-sacrifice made by the plaintiff and support which was invaluable and indispensable.[9]

[8]             at paragraphs 34-36 and 96

[9]             at paragraphs 100-101. Kaye J applied the reasoning of Gibbs J in Goodman v Windeyer (1980) 144 CLR 490 at 497-498 in which reference was made to a responsibility being derived from sacrifices made on a testator’s behalf by the claimant.

56        Despite my disquiet regarding the statements made by the plaintiff in connection with the application to the trustees of the superannuation fund, I think the sort of language used by Kaye J to describe the plaintiff in Unger v Sanchez applies equally to the plaintiff in this case in connection with his dedication to the deceased.

57        In the circumstances, I consider that there is a basis upon which it might be said that the deceased had a responsibility to the plaintiff. However, unlike Unger v Sanchez, where there was a sizeable estate, the estate of the deceased here is modest in the extreme.

58        The difficulty raised by the size of the estate in a setting where it could be said that a claimant had established that a testator/testatrix had a responsibility was dealt with in Gillies v Executors of the Will of Sitch (decd);[10] Chapman v Hudson;[11] Markovska v Kocevska[12] and in Peterson v Micevski.[13]

[10] [2005] VSC 308

[11] [2006] NSWSC 373

[12] [2005] VSC 319, per Byrne J at paragraphs 26-27

[13] [2007] VSC 280, per Hansen J at paragraphs 158-159

59        In Chapman v Hudson,[14] Young CJ made the following observation:

“I have, of course, been referred to the two-prong test in Singer v Berghouse (1994) 181 CLR 201. Looking at the first limb of the test, it seems to me that the testatrix who looked at her family's position may well have said, ‘Well if I had a little more money I would make provision for the plaintiff who has special needs, but if I do so it will mean I can make no provision for the rest of the children. I can, however, do the best by having a roof over two of their heads by doing what I have done in my will, so that whilst I regret this will not help the plaintiff, that's the way I think I should go’.[15]

[14] [2006] NSWSC 373

[15]           at paragraph 34

60        I think a wise and just testator in the position of the deceased would have considered that the extreme modesty of the estate did not give rise to a responsibility to the plaintiff to make provision for him because the division of such a modest sum would be of little utility to both the plaintiff and the defendant, as opposed to a greater utility if left to one of them.

61        This proceeding is much like the authorities I have referred to in which the trial judges were very much on the horns of a dilemma in determining that even if the testator had a responsibility, that the modesty of the estate became a dominant factor in deciding against the claimant.

62        This is a tragic case. The plaintiff and the defendant have strong emotional feelings for the deceased yet find themselves at loggerheads over an extremely modest estate. My strong impression is that their views of their own moral claims on the bounty of the deceased have overridden good sense.

63        Therefore, I find that the deceased did not have a responsibility for the plaintiff, and my primary reason for so finding is not related to the plaintiff’s dedication to the deceased, but the size of the estate and the objective test of what the deceased as a wise and just testator would have done in these circumstances in leaving the whole of his estate to the defendant.

Conclusion

64        For the reasons set out above, I order that the Originating Motion be dismissed and that each party bear their own costs.

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