Hornby v Cavenagh

[2001] NSWSC 689

CITATION:	Hornby v Cavenagh & Anor [2001] NSWSC 689
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1678/00
HEARING DATE(S):	1-3 August 2001
JUDGMENT DATE:	16 August 2001
PARTIES :	Nicola Lee Hornby (Plaintiff) v Amanda Jane Cavenagh & Scott William Hopkins as Executors of the Estate of the Late Jean Bertha Ferguson (Defendants)
JUDGMENT OF:	Acting Master Berecry

COUNSEL :	P: Mr N Francey, Mr I McLaughlan Ds: Mr S D Rares SC, Mr A McGrath
SOLICITORS:	P: Andrews Watts Lawyers Ds: Heaney, Richardson & Nemes Lawyers
CATCHWORDS:	Family Provision - niece-aunt - dependency - member of household - factors warranting - quality of relationship - testamentary intention - natural object of recognition - large estate
LEGISLATION CITED:	Family Provision Act 1982, ss6, 7, 9
CASES CITED:	Ball v Newey (1988) 13 NSWLR 489 Petrohilos v Hunter (1991) 25 NSWLR 343 Clinch v Swift (Young J, 13/10/86, unrep) Moloney v Goodwin (Needham J, 1/8/89, unrep) Re Fulop, Deceased (1987) 8 NSWLR 679 Whitmont v Lloyd (Bryson J, 31/7/95, unrep) Anasson v Phillips (Young J, 4/3/88, unrep) Singer v Berghouse (No.2) (1994) 181 CLR 201
DECISION:	Proceedings dismissed. Plf pay her own costs. Dfts' costs be paid out of estate on indemnity basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

THURSDAY, 16 AUGUST 2001

1678/00 - Nicola Lee HORNBY v Amanda Jane CAVENAGH & Scott William HOPKINS as Executors of the Estate of the
Late Jean Bertha FERGUSON
JUDGMENT

1 MASTER: The plaintiff, Nicola Lee Hornby, seeks an order for provision to be made out of the estate of the late Jean Bertha Ferguson ("the deceased") pursuant to s 7 of the Family Provision Act, 1982 ("the Act"). The application was brought by way of Summons filed on 8 March 2000. The deceased died on 1 April 1999. Therefore, the proceedings are brought in time.

2    The plaintiff is a niece of the deceased. The defendants, Amanda Jane Cavenagh and Scott William Hopkins, are the executors of the estate of the deceased. They are also a niece and nephew respectively. The plaintiff brings the application on the basis that she is an "eligible person" pursuant to para (d) of that definition contained in s 6(1) of the Act.

Family History and Background

3    The deceased was the sister of the father of the plaintiff and the first defendant. She was also the sister of the mother of the second defendant. The deceased lived at Bronte in the house built by her father. Her father, Joseph Ferguson, died on 22 August 1973. His wife and the mother of the deceased, Lily Florence Ferguson, is still living. There were three children of that marriage, Jean Bertha Ferguson (the deceased), Joseph Alexander Ferguson and Delores Ruby Hopkins. The deceased never married and lived at home with her surviving parent until she died on 1 April 1999. Her father left the Bronte property to her and gave her mother, his wife, a right to reside in the property for life. Joseph Alexander Ferguson, the son, married Doris-May Ferguson and, after they married, they lived for a short time at the Bronte property. They then purchased a house at Killarney Heights. There are four children of that marriage. They are the plaintiff, the first defendant, Jody Anderson and Andrew Ferguson. Joseph separated from his wife in 1981. Subsequently, they were divorced. On 31 December 1990, Joseph died. Delores Ruby Hopkins married and moved away from home. She and her husband had three children. They are the second defendant, Bruce Hopkins and Cameron Hopkins. Delores died on 16 June 1977.

4    The main asset in the estate of the deceased was the Bronte property. Under the terms of her will, the property was left equally to the first and second defendants and Bruce and Cameron. No provision was made for the plaintiff or her sister, Jody, or her brother, Andrew. The relationship between Doris-May Ferguson and the deceased had deteriorated in the mid-1960's. The evidence suggests that they were never close.

5    The deceased's role in the extended family appeared to be that of a matriarch. Until the mid-1990's, family functions were held at the Bronte property. Most members of the extended family attended for Easter, Christmas and birthdays. Most of the nieces and nephews appear to have spent part of their school holidays at the Bronte property, going to the beach and just enjoying the environment. The deceased appears to have been close to the Hopkins boys. After her sister died in 1977, the deceased appears to have taken a greater role and interest in the boys. That relationship seems to have been reciprocated by the boys. They continued to attend for dinners at the Bronte property at least fortnightly and that continued certainly so far as the second defendant was concerned until after he started a family, when, with young children, it became a bit more difficult to attend evening dinners as regularly at Bronte. Nevertheless, a close relationship seems to have been maintained right up until the time the deceased died. Similarly, it can be said in respect of the other two boys that the relationship was close. The evidence suggests that the relationship was one in which the deceased regarded herself as a surrogate mother for the three boys. She took a keen interest in their development. She referred to them, when speaking to other members of the family and friends and at functions, as "my boys". She was pivotal at each of their marriages and, in fact, gave the speech which is usually given by the groom's father on those occasions.

6    So far as the Ferguson children are concerned, it would appear that the relationship was a little more complex. As with the Hopkins boys, likewise, the Ferguson children attended the family functions throughout the years, although, not all children attended all functions. However, the relationship was clouded by the bad relationship between their mother and the deceased and then subsequently, when the father left the Killarney Heights home, further strain was put on the relationship. The evidence suggests that Andrew was never close to either the deceased or his grandmother on his father's side. However, the three daughters, namely the plaintiff, the first defendant and Jody, enjoyed a good relationship with the deceased. It appears that Jody and the first defendant, in their formative years, lived in a flatette attached to the downstairs portion of the Bronte property. However, they were quite young when their parents moved to Killarney Heights. The plaintiff was born after her parents purchased the Killarney Heights property. However, she, the first defendant and Jody appear to have spent time, just as the Hopkins boys did, at the Bronte property.

7    Whilst there is no evidence that the first defendant resided at the Bronte property other than the first four years of her life, it appears that she developed a close relationship with the deceased. They worked for the same employer. The first defendant continued to attend family functions and, in December 1991/January 1992, the first defendant, her husband, the deceased and her grandmother, visited the plaintiff and Jody in New Zealand. By 1997, the deceased's health had deteriorated. The first defendant and her husband spent some time at the Bronte property looking after the grandmother whilst the deceased was in hospital. The evidence is that, on the several occasions between 1996 and her death that the deceased was hospitalised, the first defendant visited her on a regular basis. There also appears to have been a social contact with the deceased.

8    In about 1983, the plaintiff moved out of the Killarney Heights home. The evidence is that, by 1983, her relationship with her mother had deteriorated to an extent that she was unhappy living in the family home. Her father, who by this time was living with the deceased and his mother in the Bronte property, invited the plaintiff to move into that property. A part of the attraction of the move was that, if she lived with her father at Bronte, he would then continue to pay her school fees at Wenona School. In any event, in about 1983, the plaintiff moved into the Bronte property. She lived at this property until 1987. She completed her HSC in 1984 and commenced working with the Commonwealth Bank in 1985.

9    In January 1987, she moved out of the Bronte property and into a flat. By May 1987, her father had also left the Bronte property and the two of them rented other accommodation together in the Eastern Suburbs. The plaintiff continued to live with her father until he died on 31 December 1990. Thereafter, the plaintiff continued to live in rented accommodation until June 1991 when she moved to New Zealand to be with her sister, Jody. The two of them operated a Wendy's ice-cream franchise.

10    After leaving the Bronte property, the plaintiff and her father continued to visit the deceased and her grandmother at Bronte at least once a week for dinner. However, after her father was diagnosed with cancer, these visits ended. The deceased and the grandmother tended to visit the father whilst the plaintiff was at work and would prepare meals for the plaintiff, the first defendant and their father. After the father died, there was very little evidence about the contact that the plaintiff had with the deceased. It would appear that she attended some family functions, such as her grandmother's 90th birthday. The plaintiff became engaged in 1998 and the deceased was invited to the engagement party. However, unlike for the nephews and the first defendant, the deceased made no speech at the engagement party. The deceased died in April 1999 and the plaintiff was married in September 1999. The evidence is, however, that no reference was made to the deceased in any of the speeches made at the wedding.

11    Colleen Jean McLachlan, a close friend of the deceased, in her affidavit sworn on 29 November 2000, gives evidence of her observations of the relationships between the deceased and the plaintiff, the first defendant and the Hopkins boys. Her evidence is that the deceased was not as close to the plaintiff as she was to the others. She was more open in her display of affection towards the others than she was towards the plaintiff. She also gives evidence that, at about the time the plaintiff was to commence residing at the Bronte property, the deceased expressed a view to Ms McLachlan that she was not keen to have the plaintiff stay with them. There is evidence of some minor criticism of the plaintiff during her stay at the Bronte property. However, the criticism appears to be a criticism of a spinster aunt not understanding the ways of a teenage girl. Ms McLachlan was not called for cross-examination and, therefore, I give some weight to her evidence as it was not challenged.

Relationship of the Plaintiff and the Deceased

12    The plaintiff's evidence is that she and the deceased were very close and that, once she moved into the Bronte property, the deceased took on the role of a surrogate mother. She became a steady influence on the plaintiff and she assisted her in a number of ways. She taught her things that young teenage girls need to know. She reassured her that she would take care of her even if her mother wouldn't and she showed an interest in the plaintiff's schooling. The plaintiff still attended the home at Killarney Heights during her last year at school. She had a casual job at a Chinese restaurant at Killarney Heights. However, most of the time was spent at the Bronte property. The deceased also showed an interest in the friends of the plaintiff, both her old school friends from Wenona School and Killarney Heights and her new friends that she made after leaving school. During these years, it would appear, from the plaintiff's evidence, that the deceased and the plaintiff had a reasonably close relationship.

13    However, since moving out of the Bronte property in early 1987, with the exception of the period of her father's illness, it would appear that there was not regular contact in the following twelve years. During that time, there was some evidence, although it is not clear, that the plaintiff attended some functions at the Bronte property. There is evidence that the deceased visited the plaintiff and her sister, Jody, in New Zealand and there is evidence that the deceased attended the plaintiff's engagement party. However, during that twelve year period, there doesn't appear to have been anything remarkable in the relationship which would have placed it above what one would expect in a relationship between a niece and an aunt.

Eligible Person

14 Section 6 of the Act, the definition section, relevantly provides:-

" eligible person , in relation to a deceased person, means:
…
(d) a person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member."

15    There are two elements that the plaintiff must establish if she is to be regarded as an eligible person. Firstly, that there was some dependency on the deceased and, secondly, that she was a member of the household of the deceased. There was much evidence of some controversy about both these aspects in relation to the plaintiff. It was suggested by the defendants that the plaintiff did not reside at the Bronte property for the period of time that she alleges. The plaintiff's evidence was that she moved into the Bronte property in early 1983 and continued to reside there on a permanent basis until early 1987. She admits that she spent time with her mother at Killarney Heights. She had the weekend job at the Chinese restaurant at Killarney Heights. It would be unreasonable and impractical to expect a teenage girl to travel across the city to work and then make her way back to her residence, bearing in mind, especially, that it would entail some night travel. It is only natural that she would stay at her mother's place, which was a home in the same suburb. There was also evidence given by the plaintiff's mother that, in January 1984, the plaintiff contracted glandular fever and she was sent to the Killarney Heights home by the deceased to remain with her mother for approximately one month until her health had improved.

16    There were tendered a number of affidavits from a Family Court proceedings between the plaintiff's father and her mother. I place little weight in some of the evidence contained in those affidavits. It seems to me that the evidence in those affidavits was, to a large degree, self-serving. The mother was cross-examined on the amount of time that the plaintiff spent with her in 1984. For the purposes of the Family Court proceedings, she deposed to the fact that the plaintiff had spent 226 days with her at Killarney Heights. However, I do not accept her evidence that that was the case. I prefer to rely on the evidence given by other witnesses as to what was the true position. Cathryn Richardson, a friend of the plaintiff, gave evidence that the plaintiff moved out of the Killarney Heights home in 1983 and in 1984, occasionally stayed with her mother and, in fact, lived at Bronte for most of 1984. The plaintiff's brother, Andrew, gave similar evidence. Whilst the commencement of the period of residency at Bronte was contested by the defendants, there is no strong suggestion that, once the plaintiff had moved to Bronte, it did not become her principal place of residence. There is also evidence in the exhibited Family Court affidavits as to the maintenance of the plaintiff. Not unnaturally, both parents claimed that they were making a financial contribution towards the welfare and education of the plaintiff. There was also evidence that the plaintiff's father was paying rent to either his mother or his sister, as well as some provision for food for both himself and the plaintiff.

17    The first element to look at, therefore, is whether the plaintiff was wholly or partly dependent on the deceased. It is submitted on behalf of the defendants that there were no elements of dependence. However, I do not think the evidence supports that submission. The evidence would suggest that financial contributions were made by the plaintiff's father. Whilst there was no evidence that either the grandmother or the deceased had made any direct financial contributions towards the plaintiff, it would appear that, in all probability, some of the moneys they expended on food, electricity and the like would, of course, have been a benefit that the plaintiff would have enjoyed. However, there are other aspects of dependency other than financial dependency.

18    The dependency is not restricted to financial dependency. In Ball v Newey (1988) 13 NSWLR 489 at 491, Samuels JA said:-

"It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s 6(1) the definition of 'eligible person', par (d)(i). … 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed."

19    The plaintiff's relationship with her mother had deteriorated to a point where it appeared to have been in her interest to move out of the Killarney Heights property. Her father offered her accommodation at Bronte with the offer that, should the plaintiff take up residence at Bronte, he would pay her school fees at Wenona School. The evidence is that the plaintiff's father paid rent and board for both of them, certainly whilst she was still at school. Along with providing, to some degree, the sustenance that she needed, it also provided accommodation for her. Emotionally, the plaintiff, during this period, seemed to place some reliance on the deceased. I have already referred to parts of her evidence concerning that relationship. It seems to me, therefore, that there was a part dependency on the deceased. In Petrohilos v Hunter (1991) 25 NSWLR 343, Hope JA, at p 346, said:-

"The word 'dependent' is an ordinary English word, and whether a person is or has been whol [l] y or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning."

20    Therefore, in my view, although the person primarily responsible for the plaintiff, most certainly in 1984 at Bronte, was her father, it seems to me that the example given by Young J in Clinch v Swift (13 October 1986, unreported), that grandchildren, whilst dependent on their parents, were not dependent on the grandparents who provided the accommodation, can be distinguished in this particular case. In my view, on the evidence, the plaintiff received emotional support from the deceased and, in my view, there was partial dependency on the deceased for accommodation, sustenance and emotional support.

21    There was also a question of whether or not the plaintiff was a member of the household at Bronte or whether there were significant periods when she resided elsewhere, namely, at Killarney Heights. It seems to me that, on the authorities, a person can be a member of two households. The most obvious example being, where parents have separated and the children of that marriage spend part of their time on a regular basis with one parent, living and residing in that home, and part of the time on a regular basis living and residing with the other parent.

22    In this case, in my view, the same would apply to the plaintiff. However, the plaintiff's evidence, which I accept on this issue, is that, certainly in 1984, the only time that she spent at her mother's home was after working at the Chinese restaurant at Killarney Heights, so, at a minimum, she would spend one night a week at Killarney Heights and also, of course, the period when she had glandular fever. In my view, that would not displace the plaintiff from being a member of the household at the Bronte property. It is clear to me that the plaintiff was a member of that household. In Moloney v Goodwin (Needham J, 1 August 1989, unreported), his Honour was of the view that, before there could be a household, one had to be part of a quasi family unit. It would seem to me that, in the present case, the elements of a quasi family unit are present. Not only are all occupants members of the same family, but they lived together in the way which families traditionally do. It would seem to me that, at the very least, the deceased was a co-head of that household. She was the owner of the property, subject to a right of residency that her mother had. She, as did the plaintiff's father, worked and brought income into the household. The grandmother and the deceased also performed other household tasks, such as cooking meals and the like. Those meals were provided to four members of that household, namely, the deceased, the grandmother, the plaintiff and the plaintiff's father. They ate their meals together. The family functions continued to be held at the Bronte property with members of the extended family attending functions from time to time. It is clear to me that, during this period, the plaintiff had an intimate connection with the deceased as well as other members of that household.

23    Therefore, I am of the view that the plaintiff falls within the definition of "eligible person" under para (d)(i) and (ii) of s 6(1).

Section 9

24    In Re Fulop, Deceased (1987) 8 NSWLR 679, McLelland J said, at p 680:-

"In an application for provision under the Family Provision Act 1982, s 7, the ultimate function of the Court is to determine first, whether the provision (if any) made in favour of the plaintiff by the deceased either during his or her lifetime or out of his or her estate (including, where applicable, any provision arising under the laws relating to intestacy), is inadequate for the proper maintenance, education and advancement in life of the plaintiff, and secondly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes. In each case the Court has regard to the circumstances at the time of the determination.
In making these determinations, the following principles apply: first, the Court should not interfere with the dispositions in the will (or, where applicable, arising under the laws relating to intestacy) except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life, secondly, the expression 'proper' in this context connotes a standard appropriate to all the circumstances of the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased) which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased (b) the character and conduct of the plaintiff (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs (d) the size and nature of the estate of the deceased (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased (or where applicable under the laws relating to intestacy) and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased."

25    In considering the various classes of eligible persons, his Honour, at p 681, considered categories (c) and (d) and made the following comments:-

"The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased … whereas the classes affected by s 9(1) … are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased."

26    Whilst the plaintiff is an eligible person, it is still necessary to look at whether or not there are any factors warranting the making of provision out of the deceased's estate for the plaintiff. The matters referred to by McLelland J in Re Fulop and in s 9(3), whilst not exhaustive, are matters to consider in determining whether or not there are factors warranting the making of an order in favour of the plaintiff. It is not suggested in the evidence that the plaintiff made any contribution of a financial nature or otherwise provided services which, directly or indirectly, contributed to matters set out in s 9(3)(a)(i) and (ii).

27    There is no suggestion, in the evidence relied on by the defendants, that the plaintiff conducted herself in such a way whilst residing at the Bronte property that her conduct was such that it would disentitle her from making a successful claim under the Act.

28    There is evidence from the plaintiff of the welfare she received as a result of living in the same household as the deceased. However, there is no evidence that the plaintiff made any contribution towards the welfare of the deceased. There is no suggestion that the plaintiff assisted in any major work around the property, such as maintenance and repair of the property. However, there is evidence, for instance, dealing with matters which are characteristic of a homemaker. The plaintiff's evidence is that she assisted with ironing, washing and cooking.

29    There is the evidence of Colleen McLachlan concerning the comments made by the deceased about the plaintiff. However, in my view, that evidence doesn't take the matter very far. Those alleged statements go no more than just highlighting the different approach to life by a spinster aunt and her teenage niece.

30    Prior to the death of the deceased, the plaintiff became engaged. Since the death of the deceased, she has married. Her obligations have changed and increased as a result of the marriage. Her circumstances prior to the marriage can be regarded as different to her present circumstances. As with most married couples, she and her husband wish to be in a position where they can purchase their own home. That is a significant change from the position the plaintiff found herself in prior to becoming engaged.

31    After 1987, however, the plaintiff saw little of the deceased. The evidence appears to be that, during 1987, there was regular contact with the deceased. She and her father would attend the Bronte premises for dinner once a week. There is also evidence to the effect that, once the plaintiff's father became ill, the deceased and the grandmother attended the flat on a regular basis to provide meals for the father, the plaintiff and the first defendant, and to look after the father. On many of these occasions, the plaintiff, by her own evidence, was not in attendance, as they would usually attend during the day while the plaintiff was at work.

32    The plaintiff was in New Zealand for two years with her sister, Jody, and it could not be expected that she would have regular face to face contact with the deceased during this period. However, the deceased did, in fact, visit the plaintiff and her sister, Jody, in New Zealand. There was no evidence that there were telephone calls, Christmas or birthday cards, or letters between the deceased and the plaintiff during her time in New Zealand. Likewise, on her return to Australia, there was very little in her evidence which would suggest that she was close to the deceased. There is, in fact, almost a complete lack of evidence dealing with her relationship with the deceased prior to early 1999, when the deceased's illness appears to have deteriorated. The plaintiff's evidence is that she and her husband attended the hospital to visit the deceased and, in fact, she was present at the hospital when the deceased passed away.

33    The evidence seems to suggest, however, that the deceased was not close to the plaintiff, certainly not as close as she was to the first defendant and the Hopkins boys. I have already referred to the weddings of each of the three boys and the role that the deceased played in those celebrations. Similarly, with the first defendant, the deceased seems to have taken on the role of a parent at her wedding celebrations. There is no evidence indicating a close relationship between the deceased and the plaintiff. Certainly after January 1987, there is no evidence of gifts exchanged between the two and, in fact, the only reference to gifts was in the plaintiff's affidavit of 23 February 2000 when she states that she recalls on Mothers' Day of 1983, giving the deceased a bunch of flowers.

34    To accommodate the plaintiff, the deceased and the grandmother changed their sleeping arrangements so that the plaintiff had her own bedroom at the Bronte property. However, there is also evidence that, when the plaintiff suffered from glandular fever, she was sent back to her mother at Killarney Heights to be nursed. Once she recovered from glandular fever, she moved back to the Bronte property. That, in itself, would not indicate a close relationship of the kind which might attract the provisions of the Act.

35    In Whitmont v Lloyd (Bryson J, 31 July 1995, unreported), his Honour was dealing with a large estate. The relationship was that of daughter and parent. There had been a period of twenty years without contact, although the evidence was that there had been significant contributions made by the daughter to the deceased. In the present proceedings, there is no evidence of significant contributions made by the plaintiff to the deceased.

36 The factors in s 9 by and large deal with two broad matters. One is the contributions, whether financial or non-financial, made by the eligible person towards the deceased. The second aspect is character and circumstances of the eligible person. The deceased made her will in 1991, a period of some four years after the plaintiff vacated the Bronte property. It was made at a time when memories would have been stronger of the period when the plaintiff resided with the deceased. It seems to me that the deceased made a clear decision about how she wanted her estate to be distributed. She showed a preference for her nephews and one niece over her other nephew and nieces. The will was not executed close to her death. If it had been, she may have formed a view that, because there had not been regular contact with certain nieces and her nephew, she should exclude them from her will. She appears to have made her decision based on other factors in 1991.

37    In Anasson v Phillips (Young J, 4 March 1988, unreported), his Honour considered what the position is where there is a large estate and what the testamentary obligations of a testator are. His Honour said:-

"These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to re-write the will, but can only adjust things in such a way as to, in substitution for the testatrix, fulfil her moral duty.
If the estate is a large one the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland [1966] VR 404, especially p412."

38    Since Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the terms "moral duty" and "moral obligation" have not been a matter for consideration. The Courts have applied the wording of the relevant sections rather than describing any obligations owed by a testator under "moral obligation".

Should Provision Be Made For The Plaintiff?

39 Although the plaintiff resided in the same household as the deceased for a period of about four years, it is difficult to see, on the evidence, that there are any factors warranting the making of provision for the plaintiff. Therefore, the plaintiff cannot be generally regarded as a person who would be a natural object of testamentary recognition by the deceased. Whilst during that period the plaintiff was partly dependent on the deceased, it could not be said that any of the factors in s 9(3) are strong enough to warrant any provision being made out of the estate of the deceased. There is no evidence of contributions made by the plaintiff to the deceased. There is no evidence which would suggest that an obligation had been created and that a just and wise testatrix would make provision.

40    Therefore, the proceedings should be dismissed.

41    So far as costs are concerned, the plaintiff has been unsuccessful and, therefore, is not entitled to recover her costs from the estate.

42    Generally, an unsuccessful plaintiff will bear the liability for the costs of a successful defendant. In the present proceedings, the combined costs for a two day hearing were estimated to be $155,000. This matter was heard over three days and, therefore, the costs will be greater than $155,000. The estate is a large estate, the present value being just under $2,000,000. The plaintiff has very little by way of assets. Both she and her husband work and they are both young. To impose a costs order against them in favour of the defendants would be to impose an unjust burden on the plaintiff, when one has regard to the size of the estate. In my view, the appropriate costs order should be that the plaintiff pay her own costs and that the defendants' costs be payable out of the estate on the indemnity basis.

43    ORDERS

1. The proceedings be dismissed.
2. The plaintiff pay her own costs.
3. The defendants' costs be paid out of the estate on the indemnity basis.

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Last Modified: 09/03/2001