Feehan v Toomey
[2014] VSC 488
•3 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 06060 of 2012
IN THE MATTER of an application pursuant to Pt IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the will of MARIE LOYOLA CLEARY, deceased
| KHRISTIANA FEEHAN, JAMIE SWITZER and SARAH CLEARY | Plaintiffs |
| v | |
| CATHERINE ANNE TOOMEY and JOHN EDWARD CLEARY (who are sued as the executors of the will and estate of the abovenamed deceased and in their personal capacity) | Defendant |
---
JUDGE: | McMillan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2014 | |
DATE OF JUDGMENT: | 3 October 2014 | |
CASE MAY BE CITED AS: | Feehan v Toomey | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 488 | |
---
Succession law — Testator’s family maintenance — Application under Pt IV of the Administration and Probate Act 1958 — Application by granddaughter of the deceased — Where daughter’s mother and daughter of the deceased predeceased the deceased — Where no substantial relationship shown — No responsibility to provide — MacEwan Shaw v Shaw (2003) 11 VR 95 considered
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Wilmoth | J H Legal Pty Ltd |
| For the Defendant | Mr M McKenzie | John Perillo |
HER HONOUR:
Introduction
In this proceeding the first plaintiff, Khristiana Feehan (‘the plaintiff’) seeks provision for her maintenance and support from the estate of her late grandmother, Marie Loyola Cleary (‘the deceased’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’).
The deceased died on 24 February 2012, leaving a will dated 26 January 2010 (‘the will’). Probate of the will was granted to the defendants, a son and a daughter of the deceased, on 10 May 2012. The deceased was survived by eight of her nine children. One of her daughters, Eileen Mary Cleary, predeceased the deceased on 1 January 2010, leaving three children, who are the three plaintiffs. The deceased left the residue of her estate to her eight surviving children, with gifts over to the children of her surviving children. As Eileen Mary Cleary predeceased the deceased, her three children did not take any benefit under the deceased’s will. The deceased’s penultimate will, dated 2 August 2001, left the residue of her estate to her nine children, with gifts over to the children of each of her children, including the three plaintiffs. No challenge was made to the validity of the deceased’s last will.
Jamie Switzer, the second plaintiff, and Sarah Cleary, the third plaintiff, were initially plaintiffs in this proceeding, also seeking further provision. The second plaintiff, Jamie Switzer, died in February 2014 and no claim is pressed on his behalf. The third plaintiff, Sarah Cleary, did not appear at trial despite indicating only two days before that she would be attending. Although her counsel initially sought to reserve her position, ultimately she was unable to be contacted despite the efforts by her instructing solicitors to contact her and counsel did not proceed with her claim against the estate of the deceased. I will hear the parties as to the appropriate orders to be made, if any, in respect of the claims by the second and third plaintiffs, but in these reasons I deal only with the claim by the first plaintiff.
The estate of the deceased is valued at $831,257.53 as at the date of death. The defendants, as executors of the estate, distributed the estate to the eight surviving children of the deceased on 2 July 2012. This distribution was within six months after the grant of probate, being the period within which a claim under s 91 of the Act may be made. In his evidence at trial, the second defendant said he was not aware of the six months requirement before distribution, and did not retain solicitors to advise the defendants in the administration of the estate. The plaintiff submitted, and the second defendant accepted, that if the plaintiff were successful in her claim against the estate, the defendants would be personally liable for any payment to her.
The plaintiff gave viva voce evidence, and relied upon the two wills of the deceased and the inventory filed with the grant of probate. The defendants each gave viva voce evidence, and relied upon a webpage print-out – to which I will return – and a summary in an e-mail of how the estate was distributed.
A short observation on the manner of giving evidence
Prior to trial, I indicated to the parties that my preliminary view was that the evidence should be led viva voce rather than by affidavit, and that was ultimately how the matter proceeded. In Part IV matters, as in probate proceedings, it is often the most appropriate manner to conduct a trial, for two reasons. First, as the deceased cannot give evidence, and as a finding that the deceased has abused their testamentary freedom is a serious allegation, evidence must be considered in accordance with the principles in s 140 of the Evidence Act 2008 and in Briginshaw v Briginshaw.[1] In such cases, as a trial judge, it is of great assistance to be able to listen to the parties talk about their experiences and, in particular, their relationship with the deceased. Secondly, in my experience, affidavits filed prior to trial often contain much objectionable material, in particular opinion evidence by family members that expresses conclusions about the relationships between plaintiffs and testators rather than observations of conduct and events. Unless objections are discussed and agreed prior to trial, it is inefficient to waste Court time debating the probity of such evidence. Although each matter will be different, practitioners should bear those considerations in mind in preparing Part IV matters for trial.
[1](1938) 60 CLR 336.
The evidence
The plaintiff’s relationship with the deceased
When the plaintiff was aged six or seven, she spent a few weeks living at the deceased’s home when her parents separated. She has fond memories of this time. When her mother and father reconciled, contact with the deceased was less frequent. The plaintiff said her mother and the deceased had a ‘falling out’ or ‘estrangement’ and she did not really see the deceased during her childhood.
The plaintiff said that between the time she lived with the deceased and the time of giving birth to her daughter Sophie in 1999, she had very little contact with the deceased. She estimated that she saw the deceased once every year or couple of years. Counsel for the plaintiff accepted that the relationship between the plaintiff and the deceased was certainly tenuous.
The plaintiff maintained that after her children were born she tried to reconnect with the deceased. On 5 February 1999 the plaintiff gave birth to her first child, Sophie, and she took her newborn to see the deceased. When she gave birth to her son, Edward, on 4 July 2002, she also took him to visit the deceased. She said there were no other occasions on which she took her children to visit the deceased.
Between visiting the deceased after Edward’s birth in 2002 and the deceased’s death in 2010, the plaintiff only saw the deceased possibly as many as five times.
She said that, although she tried to establish a relationship with the deceased after her two visits by telephoning her occasionally and sending her some Christmas cards, her attempts were not reciprocated by the deceased. She described her grandmother as not very open or emotional. Her counsel accepted that, as a result of the deceased’s response, the plaintiff did not persist beyond a certain point in attempting to establish any relationship.
The plaintiff’s financial circumstances
The plaintiff’s primary income is as a bookkeeper and administrative assistant at McLaughlan & Associates, a building company. She estimated that she earns $1,200–$1,400 per fortnight after tax, working weekdays. She receives a payment of $500 per fortnight from Centrelink as low income assistance. She receives a fortnightly maintenance payment of $400 from her ex-husband, half of which he contributes towards the childrens’ school fees and orthodontics, and the other half of which she receives in cash. It was agreed that her after tax income was around $51,000 per annum. She estimates that she has about $14,000 in superannuation.
In cross-examination, the plaintiff was handed a printout of a website for a make-up business called ‘Khristiana’s Make Up’. She said that she used to run Khristiana’s Make Up as a business, and lodged tax returns for it during that time. It is now defunct, although the plaintiff said that she does continue to provide make-up application services from time to time, earning $30–$50 once per month or fortnight. She did not declare any of that income, as it was earned as a hobby.
The plaintiff said that her only assets were her household chattels and her car, and that she lives in rented accommodation. She has no savings, and has a credit card debt of $5,000. She said that she owes her uncle $2,800 for her deceased mother’s headstone, and another $5,000 for the legal fees for this proceeding.
The plaintiff is currently studying a Diploma of Accounting, with the intention of starting her own bookkeeping business. She should finish the diploma in 18 months. She estimates the entire cost of the course at $7,000– $8,000. The fees are met by a HECS loan, repayable upon her earning over $50,000 per annum.
The plaintiff’s children, Sophie and Edward, are in year 10 and 6 respectively. Sophie attends Avila College, whose fees are around $5,500 per year. Edward attends St Mary’s Primary School in East Malvern, whose fees are $1,500 per year. Edward will commence at Salesian College next year, whose fees are around $5,000 per year. Sophie has had orthodontic work, and the plaintiff is uncertain whether Edward will require any orthodontic work.
The relevant law
General principles
In any application for further provision pursuant to s 91 of the Act, the Court must determine three questions:
(a)Did the deceased, at the date of her death, have a responsibility to make provision for the proper maintenance and support of the plaintiff?
(b)If so, did the deceased, in the distribution of her estate, make adequate provision for the proper maintenance and support of the plaintiff?
(c)If not, what is the amount of provision (if any) that the Court should order?
In considering these questions:
(a)the Court must have regard to the matters set out in ss 91(4)(e)–(p) of the Act;
(b)the Court must determine whether the deceased had a moral duty, responsibility or obligation to an applicant;
(c)keeping in mind the weight given to the freedom of testation, the Court will only interfere if the testator has failed in his or her moral duty;
(d)that moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards;[2]
(e)because of the seriousness of the allegation that a testator has abused that freedom, the principles concerning the qualities of the proofs required set out in Briginshaw v Briginshaw[3] are applicable;[4]
(f)if an applicant is successful in establishing that a deceased had a moral duty, responsibility or obligation towards him or her, the onus lies with the applicant to demonstrate the extent of that provision; and
(g)the extent of provision should be determined at the date of the trial, taking into account the plaintiffs’ position at that time.[5]
Claims by grandchildren
[2]Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston J). See also Blair v Blair (2004) 10 VR 69, 77–80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Andrew v Andrew (2012) 81 NSWLR 656, 660 (Allsop P), 679–80 (Barrett JA). For the meaning of ‘community standards’, see Slack v Rogan [2013] NSWSC 522 (10 May 2013) [124]–[125] (White J).
[3](1938) 60 CLR 336, 362, 368–9 (Dixon J).
[4]Schmidt v Watkins [2002] VSC 273 (24 July 2002) [17]–[21] (Harper J). See also Webb v Ryan [2012] VSC 377 (3 September 2012) [21]–[22] (Whelan J), State Trustees Ltd v Bedford [2012] VSCA 274 (16 November 2012) [104] (Neave JA).
[5]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ); Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [127] (White J).
Borrowing gratefully from the decision of Dodds-Streeton J in MacEwan Shaw v Shaw,[6] the following general principles are applicable to claims by grandchildren:
(a)the general rule is that a grandparent does not have a responsibility to make provision for a grandchild. That is, the bare fact of the relationship itself does not create an obligation;
(b)such a moral obligation rests on the parent of the grandchild.[7] If the parent provides shelter, accommodation, food and clothing, then the court is most unlikely to find that a deceased grandparent assumed a responsibility to provide for the grandchild in his or her will;
(c)in the absence of some special factor or unusual circumstance, prevailing community standards would not impose a responsibility on a grandparent to provide for a grandchild;[8]
(d)however, it is clear that no person can be automatically excluded as a person to whom a testamentary obligation was owed.[9] These general principles must be read in the context of each case, and grandchildren can neither be ruled in nor ruled out until all the facts are examined;
(e)The fact that a child’s parent has predeceased the grandparent is certainly a relevant factor.[10] Where a grandchild has lost his or her parents at an early age, been taken in by the grandparents in circumstances where the grandparents assume the role of surrogate parents, and the grandparents die when the grandchild is still dependent upon them, these factors would prima facie give rise to a claim; and
(f)significant generosity by a grandparent to his or her grandchild, including contributions to the education of the grandchild, does not convert the grandparental relationship into one of obligation to the recipients. In other words, voluntary support, generosity and indulgence do not translate into a legal obligation to provide for the grandchild.
[6](2003) 11 VR 95, 105–9.
[7]MacEwan Shaw v Shaw (2003) 11 VR 95 (Dodds-Streeton J); Sherlock v Guest [1999] VSC 431 (12 November 1999) [25] (Beach J); Petrucci v Fields [2004] VSC 425 (29 October 2004) (Mandie J), Scarlett v Scarlett [2012] VSC 515 (1 November 2012) (Vickery J); Nicholas v Nicholas [2013] NSWSC 697 (4 June 2013) [128] (Hallen J).
[8]MacEwan Shaw v Shaw (2003) 11 VR 95, 106 (Dodds-Streeton J); Griffiths v West (McLaughlin M, unreported, NSW Supreme Court, 26 October 1994); Pearson v Jones (McLaughlin M, unreported, NSW Supreme Court, 14 August 2000); Sherlock v Guest [1999] VSC 431 (12 November 1999) [25]–[27] (Beach J).
[9] Petrucci v Fields [2004] VSC 425 (29 October 2004) [64] (Mandie J), Iwasivka v State Trustees Ltd [2005] VSC 323 (18 August 2005) [12] (Hansen J), Estate of Vourdoulidis [2013] VSC 34 (3 April 2013) [107]–[108] (Zammit AsJ).
[10]Petrucci v Fields [2004] VSC 425 (29 October 2004 [64] (Mandie J).
The plaintiff’s submissions
At the commencement of the trial – when it was envisaged that the third plaintiff would also be making a claim on the estate – the case was opened by counsel on the basis that the two plaintiffs were each entitled to a one-ninth share of the estate. As the claim of the third plaintiff did not proceed, the plaintiff contended that the extent of the provision for the plaintiff should be a one-ninth share of the estate.
The plaintiff made four main submissions:
(a)the plaintiff’s financial circumstances were such that she should be entitled to further provision, especially where the deceased was aware of her financially needy situation;
(b)the plaintiff made an effort to build a relationship with the deceased, and the deceased rebuffed or, more neutrally, did not respond to those attempts;
(c)the plaintiff and her siblings should have been treated equally with the deceased’s other grandchildren, all of whom were entitled to a gift-over of their parent’s share; and
(d)in her penultimate will, the deceased recognised a responsibility to provide for the plaintiff by including such a gift over.
The plaintiff’s financial circumstances
The plaintiff submitted that she had amply demonstrated sufficient need to justify further provision. An income of $51,000 per year after tax, combined with the expenses of rent and raising two children, ‘in modern terms would constitute a relevant need’.
The plaintiff’s efforts to bond with the deceased
It was submitted that the plaintiff made efforts to bond with the deceased, taking her two children to visit her when they were first born, sending her some Christmas cards and attempting to foster a relationship with her; however, the deceased made no effort to reciprocate. The plaintiff argued that personal connection or warm relations were not a prerequisite to a claim, relying on the decisions in Harris v Bennett,[11] Day v Raudino,[12] and Petrucci v Fields.[13] The plaintiff submitted that the deceased was well aware of the plaintiff, and she took no steps to foster or invite a relationship with her despite the plaintiff’s efforts to create a relationship. The contact between them, it was said, was sufficient for the deceased to recognise the existence and needs of the plaintiff.
Equality of treatment between grandchildren
[11](2002) 8 VR 411 (McDonald J).
[12][2009] VSC 463 (14 October 2009) (Kaye J).
[13][2004] VSC 425 (29 October 2004) (Mandie J).
It was submitted that the deceased had a moral responsibility to her surviving children, as well as to the children of her deceased daughter. Borrowing from the general principle of law that like should be treated alike, it was noted that – in her last will – the deceased had provided a gift over to her grandchildren by her surviving children. Counsel rhetorically asked why, in those circumstances, she did not provide for the children of her deceased daughter. Along the same vein, the plaintiff also submitted that her mother lost the opportunity to benefit from the deceased’s estate at her death and that, as the other branches of the family received their provision, this should be accounted for.
The deceased’s recognition of responsibility
The plaintiff also submitted that, in her penultimate will dated 2 August 2001, the deceased recognised a responsibility to provide for any grandchild of a predeceased child. In her last will, made 25 days after the death of her daughter, the deceased’s decision to exclude the children of her deceased daughter was not wise and just, but was ‘callous and cruel’, a quote erroneously attributed to Mandie J in Petrucci v Fields,[14] whose actual words were:
To my mind, in the light of prevailing community standards, it would be a callous rather than a wise and just testator who would totally ignore the needs of his son’s widow, given the size of his estate and the competing claims upon it.[15]
A short observation on the citation of authority in Part IV proceedings
[14]Ibid.
[15]Ibid [61] (emphasis added).
Recently, in Bouttell v Rapisarda,[16] (a case concerning the testator’s family maintenance provisions in New South Wales) McDougall J made the following observation:
Mr Quickenden referred to a great number of decisions in support of what he said was the obligation owed by the deceased to his widow. Those decisions arose in totally distinct factual situations. They laid down no relevant question of principle. I am reminded of the observations of Windeyer J in Teubner v Humble.[17] His Honour deprecated the practice of citation of extracts from cases devoid of context, in support of propositions arising in totally different contexts:
I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application...[18]
In my view, that criticism applies a fortiori in these days of computerised databases and their facility of searching. The Court is entitled to expect that when counsel cite cases, they will apply some thought both to the selection and to the citation.[19]
[16][2014] NSWSC 1192 (27 August 2014).
[17](1963) 108 CLR 491.
[18]Ibid 503.
[19][2014] NSWSC 1192 (27 August 2014) [66]. I mean no irony in referring to a case on a claim by a widow, rather than a grandchild, in making this particular point.
I would agree, and add only that his Honour’s observation is particularly apt in testator’s family maintenance litigation. The general principles applicable in such cases are set out in a small number of famous authorities that establish the questions to be answered by the Court. The focus of the parties in Part IV matters should be on the factors set out in s 91(4)(e)–(p), and on the particular facts of the application presently before the Court. A simple search on an online database will very often produce far more material than is relevant or than can sensibly be applied, and it does not assist the Court to hand up reams of printed authorities. Care should be taken to ensure that cases are cited only where they are relevant. In this case, the plaintiff relied in part on submissions previously used in response to an application for summary dismissal, and the authorities cited only take the plaintiff’s case so far.
Consideration and conclusions
Consideration of the criteria under s 91 of the Act
In assessing the plaintiff’s claim, the Court must consider all of the relevant circumstances. Turning to the specific matters to which I am required to have regard, I have reached the following conclusions.
(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;
The plaintiff had next to no relationship with the deceased, visiting her only a number of times in the last 40 years of the deceased’s life. She telephoned her occasionally over that time, and sent some Christmas cards. The deceased was not receptive to the plaintiff, and did not want a relationship with her.
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
The deceased did not have any obligations and responsibilities to the plaintiff.
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
The assets of the estate at the date of death of the deceased was $831,257.53. The plaintiff submitted that the estate is of ample value to enable further provision to be made. Given the large number of children for whom the deceased had a recognised obligation to provide, that is not a large estate.
(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;
The plaintiff’s financial position has been set out. Her evidence of her financial position was not complete and was not supported by any documentation. Her incomplete financial information appears to be that she has limited financial resources. As this was a matter of submissions by the plaintiff, I will return to this factor more fully. The financial situation of the defendants and the other beneficiaries was not put in issue.
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
There is no evidence of any physical, mental or intellectual disability of the plaintiff.
(j)the age of the applicant;
The plaintiff is now aged 42 years.
(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;
There is no evidence of any contribution of the plaintiff to the building up of the estate or to the welfare of the deceased or the family of the deceased.
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary;
The plaintiff has not received any direct or indirect financial benefits from 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;
The plaintiff was not being maintained by the deceased before her death.
(n) the liability of any other person to maintain the applicant;
The plaintiff receives maintenance for her children from her former husband.
(o)the character and conduct of the applicant or any other person;
There was no relevant evidence of the character and conduct of the plaintiff or any other person.
(p)any other matter the Court considers relevant.
The plaintiff referred to the three further factors outlined above, to which I will return.
Consideration generally
The three cases relied on by the plaintiff in support of the submission that the deceased had a responsibility to provide all involve claims by grandchildren, but only Petrucci v Fields[20] is a decision resulting from a trial. In that case, the plaintiffs were the daughter-in-law of the deceased and her three children. The husband of the daughter-in-law was the deceased’s son, who pre-deceased the deceased. The deceased’s son was a dutiful son and the daughter-in-law was dutiful as well. Mandie J found that the deceased’s son and the daughter-in-law had a close relationship with the deceased, and that the three grandchildren had a normal relationship with the deceased.
[20][2004] VSC 425 (29 October 2004) (Mandie J).
In respect of the claim by the three grandchildren, after referring to the principles set out by Dodds-Streeton J in MacEwan Shaw v Shaw,[21] his Honour said:
The above statements by Dodds-Streeton J must be read in the context of the case and the particular claim then before the Court. It seems to me that grandchildren can neither be ‘ruled in’ nor ‘ruled out’ until all the facts are examined. It is important to distinguish between the general obligation of parents to provide for and support their children and the potential responsibility, in the statutory sense, of a testator, who is a grandparent, to make provision out of his estate for the proper maintenance and support of grandchildren. The obligation of living parents to provide for their children does not necessarily negate, in an appropriate case, the moral responsibility of a grandparent to make provision for the maintenance and support of those grandchildren out of his estate.
In the present case, the plaintiff grandchildren had a normal relationship with the deceased until the death of their father, but not a special or dependent relationship. They do have, I think, a clear need for some provision for their long-term security. They will probably not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and contingencies of life for themselves. In addition, as I have said, they have lost any possibility of immediate or continuing support from their father. In that context, according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provision for them.
I consider that a wise and just testator would not have been bound to make any provision for the immediate needs of the grandchildren. However, I think that a wise and just testator would, looking at the family line constituted by the first plaintiff and her adult children, and considering the loss of their husband and father, conclude that he had a responsibility in the particular circumstances to make some provision for the grandchildren’s future needs.[22]
[21](2003) 11 VR 95
[22]Petrucci v Fields [2004] VSC 425 (29 October 2004) (Mandie J) [64]–[66] (citations omitted).
In Day v Raudino,[23] two adult plaintiffs sought an extension of time within which to commence a Part IV proceeding against the estate of their grandfather. In seeking an extension of time, one of the requirements was that the plaintiffs had to establish that they had an arguable case. In that case, the plaintiffs had little or no contact with the deceased for around 16 years.
[23][2009] VSC 463 (14 October 2009) (Kaye J).
After also referring to the principles set out by Dodds-Streeton J in MacEwan Shaw v Shaw,[24] and in particular her Honour’s conclusion that ‘absent some special factor’ there is no responsibility to provide for a grandchild, Kaye J said:
However, there is no hard and fast rule relating to applications made on behalf of grandchildren. As Mandie J observed in Petrucci v Fields, grandchildren can neither be ‘ruled in’ nor ‘ruled out’, until all the relevant facts are examined. In such a case, the test ultimately is whether a wise and just testator would have thought it his moral duty to make any, and if so what, provision in favour of each of the plaintiffs.
…
In those circumstances, I consider that the plaintiffs’ claim, for substantive relief under s 91, could be properly characterised as arguable, and certainly not hopeless or groundless. In so concluding, I do not otherwise express any view as to the merits of the plaintiffs’ claims, nor on their prospects of success in the substantive application. It is sufficient for me to have concluded that some purpose may be served by making an order for the extension of time, in the sense that it cannot be maintained that the plaintiffs’ claim, under s 91, would be hopeless or destined to fail.[25]
[24](2003) 11 VR 95.
[25]Day v Raudino [2009] VSC 463 (14 October 2009) (Kaye J) [19], [22].
In Harris v Bennett,[26] an infant grandchild of the deceased issued proceedings under Part IV. The deceased had no relationship of closeness with the grandchild, and it was a matter of contention that he even knew of her existence. On appeal from the dismissal of the claim by a Master, orders were made allowing the plaintiff to rely on further affidavits. In making her claim, the plaintiff did rely on other matters, as well as the family relationship, as founding her claim that the deceased had a responsibility to provide for her from his estate. McDonald J held that the defendant did not establish that the plaintiff’s application was so untenable that it could not succeed, and did not summarily dismiss the claim.[27]
[26](2002) 8 VR 411 (McDonald J).
[27]Ibid 423–4.
Whilst it is correct to submit that personal connection or warm relations are not a prerequisite to a Part IV claim, these three cases demonstrate that this is only one part of a multi-faceted consideration of the factors required to be determined under s 91 of the Act. Claims made under Part IV are fact-specific, and to attempt to extract principles of general application from cases in which the factual scenario is very different from the case to be determined can be misleading. In my view, the most reliable principle to be extracted from the three cases relied on by the plaintiff is that stated by Mandie J in Petrucci v Fields: grandchildren can neither be ‘ruled in’ nor ‘ruled out’ until all the facts are examined.[28] Insofar as the plaintiff submits that the fact that she is a grandchild does not prevent her from making a claim under Part IV, I would accept that submission, although it is not a submission that takes her case very far.
[28][2004] VSC 425 (29 October 2004) (Mandie J) [64]
The authorities are clear as to a grandparent’s moral obligation to provide for a grandchild in his or her will. The obligation for provision primarily rests with the child’s parents. The fact of the family relationship alone does not establish a responsibility to provide for the plaintiff. The plaintiff’s mother did not have a relationship with the deceased, having been estranged for most of the plaintiff’s life. This can be contrasted with the deceased son in Petrucci v Fields, who was a dutiful son with a close relationship with the deceased. The plaintiff’s mother died when the plaintiff was an adult, and the plaintiff has never had the support of the deceased, save for a few weeks when she was very young. In the end, there comes a stage when adult grandchildren have a responsibility to take care of themselves, without relying on either their parents or their grandparents.
The plaintiff’s financial circumstances
The evidence led in respect of the plaintiff’s financial circumstances was incomplete. It was based primarily on assertions, and not backed up by documentary evidence that is independently verifiable. There was no detail on incomings and outgoings, or assets and liabilities, other than that she paid rent,[29] she had a credit card, and she had to pay her children’s school fees. I am not so sure that all those expenses necessarily go to need. School fees are a discretionary expense. They belong to a category of expense that can be accounted for, in relation to the education of great-grandchildren, only if the testator has a clear responsibility to provide for the plaintiff and if the estate is large enough to afford such an expense, but not otherwise. To the extent that the plaintiff has failed to satisfy the Court of her financial need, I can only conclude that any need does not bear on whether she is entitled to further provision.[30] I am satisfied that she is not financially well off by any means, and raising children in this day and age can be an expense endeavour, but neither is she living in any real poverty, and she gave evidence that her former husband pays family maintenance. Ultimately, I agree that her financial circumstances are relevant, but it remains for the plaintiff to establish why that need should be cast on the deceased’s estate.
The plaintiff’s efforts to bond with the deceased
[29]No evidence was led as to the amount of rent she paid.
[30]See also Briggs v Mantz [2014] VSC 281 (22 August 2014) [124].
The plaintiff’s evidence clearly establishes that the deceased did not wish to have a relationship with the plaintiff. The plaintiff contacted her on a number of occasions, albeit only by way of the odd Christmas card and occasional telephone calls. It is not necessary, and would not be appropriate, for this Court to blame anybody for this state of affairs. As with any family, divisions and separations arise for all manner of complex reasons. The fact is that the plaintiff and the deceased did not have a relationship of any substance, and certainly not a relationship comparable or analogous to those cases in which further provision has been granted to a grandchild. I do not consider that the attempts by the plaintiff to engage with the deceased, or the deceased’s lack of response, have any substantial bearing on her application.
Equality of treatment between grandchildren
There is no legal requirement that children be treated equally under a will, let alone grandchildren, and although ‘other things being equal’ there may be broad community acceptance that children should be treated equally as a starting point, ‘other things rarely are equal’.[31] I consider that the gift-overs to other grandchildren in the deceased’s final will do not establish a responsibility to provide for the plaintiff, for two reasons. First, no evidence was led as to other grandchildren’s relationships with the deceased. It is impossible for this Court to compare their treatment without knowing what obligations and responsibilities the deceased may have had toward any other grandchildren. Secondly, although the other grandchildren were provided with gift-overs under the deceased’s last will, they were in fact treated equally to the plaintiff, because in the circumstances as they have occurred, their parents survived and they received no distributions under the will. Had one of their parents died, the situation may have been different, but in those circumstances the deceased may also have changed her will.
The deceased’s recognition of responsibility
[31]Phillips v James [2014] NSWCA 4 (6 February 2014) [113] (Basten JA).
The deceased’s decision to exclude the children of her deceased daughter was not, in my view, ‘callous and cruel’ but was simply the exercise of her freedom of testation. To rely on the provisions of her penultimate will as evidence of recognition by the deceased of her moral responsibility towards the plaintiff is mere conjecture. It is equally possible that the plaintiff was included in the deceased’s penultimate will merely by default, and that the death of the plaintiff’s mother prompted her to the change. Testators make changes to their wills from time to time as a result of all sorts of reasons. There is no evidence as to the reasons why this change was made, and it is impermissible to guess at such reasons. The last will of the deceased is clear in that the deceased did not wish to benefit the plaintiff under her will.
Conclusions and orders
Having regard to all of the matters set out in s 91(4)(e)-(p) of the Act, the plaintiff has failed to establish to the requisite standard that the deceased had a responsibility at the date of her death to make provision for her. Accordingly, I dismiss the plaintiff’s claim. I will hear the parties as to the form of orders and as to costs.
---
---
6
3
0