IMO the Estate of John Demetriou, deceased
[2013] VSC 703
•13 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2012 03202
IN THE MATTER of Part IV of the Administration and Probate Act 1958
IN THE MATTER of the Estate of John Demetriou, deceased
| HELEN ANASTASOPOULOS | Plaintiff |
| v | |
| JIM DEMETRIOUS (who is sued as the Executor of the Will of John Demetriou, deceased) | Defendant |
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JUDGE: | ZAMMIT AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 October 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
CASE MAY BE CITED AS: | IMO the Estate of John Demetriou, deceased | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 703 | |
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TESTATOR’S FAMILY MAINTENANCE – Application by adult daughter of Testator for provision out of father’s estate – Provision made for daughter in father’s will – Administration and Probate Act (1958) Vic, s 91 – What amount constitutes adequate provision for the proper maintenance and support of the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. O’Bryan | Bowman and Knox |
| For the Defendant | Mr R.B. Phillips | Wightons Lawyers |
HER HONOUR:
John Demetriou (the deceased) died on 20 January 2012. He died a widower, having been married to Maria Demetriou, who died on 3 January 1991. They had three children, Betty Lennox, deceased (nee Demetriou), Jim Demetrious, the defendant executor, and Helen Anastasopoulos (nee Demetriou), the plaintiff.
The plaintiff was born on 15 October 1953, making her 60 years old. Betty Lennox was born on 5 October 1954 and died on 10 December 2006. The defendant was born on 10 December 1957, making him 55 years old.
Betty left three children, Sally Lennox, Annie Lennox, and Ruby Lennox (“Betty’s children”). On 17 July 2012 Betty’s children commenced a proceeding in this Court against the deceased’s estate pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”). The proceeding was settled on the basis that Betty’s children be paid absolutely $685,000 inclusive of their costs in lieu of their entitlements in the deceased’s estate.
The deceased left a Will dated 3 March 2010. By the terms of his Will, the deceased:
(a)left a legacy of $20,000 to his sister, Chrystalla Mounas;
(b)left a legacy of $5,000 to his goddaughter, Christina Andreas;
(c)left a legacy of $20,000 to his ten named grandchildren;
(d)devised 106-116 Pakington Street, Geelong West (“the Pakington property”) to the defendant, subject to him paying the value of 2 Thomas Street, Geelong West, into the estate within six months of his date of death;
(e)devised 25 Lupton Street, Geelong West to the defendant and his wife Kristen;
(f)devised 2 Thomas Street, Geelong West, to the plaintiff;
(g)bequeathed the contents of the 2 Thomas Street, Geelong West equally to the plaintiff and the defendant;
(h)left a sum equal to the value of 2 Thomas Street, Geelong West to be held on trust for Betty’s children on their attaining 30 years;
(i)left the residuary estate as to one-half to the plaintiff and the other half to share equally between Betty’s children.
The value of the deceased’s estate is currently valued between $3,587,000 to $4,057,000 as follows:
(a)legacies of $225,000 to be paid. This would reduce the personal estate to $238,830;
(b)the defendant received 106-116 Pakington Street valued at $1.42 million. The defendant on 17 July 2012 paid $400,000 into the deceased’s estate. This therefore increased the value of the personal estate to $638,830;
(c)the defendant and his wife received 25 Lupton Street valued at $450,000;
(d)the plaintiff received 2 Thomas Street value at $400,000;
(e)$400,000 of the personal estate had to be set aside on trust for Betty’s children;
(f)this brings the residue back to $238,830. The plaintiff would receive $119,000 and Betty’s children, $119,000.
Therefore, the plaintiff receives approximately $520,000 under the will, plus the rental from the Thomas Street property estimated at $22,000. The plaintiff says that the amount of $520,000 plus rental of $22,000 does not make adequate provision for her proper maintenance and support.
(a)
Pakington property
$1,690,000 - $2,150,000[1]
(b)
2 Thomas Street
$400,000
(c)
25 Lupton Street
$450,000
(d)
cash
$797,000
(e)
shares
$260,000
TOTAL:
$3,587,000 - $4,057,000
[1]There is a dispute about the value of this property. The defendant estimates the value at the lower amount of $1,690,000 and the plaintiff estimates the value at the upper end of $2,150,000.
The plaintiff did not dispute the above calculation of the estate’s present value save for the value of the Pakington Street property.
The sole issue in this case is whether the provision under the will of approximately $520,000 was adequate provision for the plaintiff’s proper maintenance and support as at the time of the deceased’s death on 20 January 2012. If I am satisfied that is not an adequate provision, I must determine what amount of additional provision should be ordered.
The plaintiff seeks one half of the deceased’s estate.
As matters currently stand, the defendant is effectively entitled to $1,470,000 to $1,930,000, depending on the value of the Pakington property. This amount takes into account the $400,000 the defendant had to pay into the estate to get the Pakington property so properly reflects what the defendant stands to inherit under the will.
Section 91 of the Administration and Probate Act 1958
The Act governs when the Court can make an order to provide “maintenance” out of the estate of a deceased estate for the support “of a person for whom the deceased had responsibility to make provision”. It sets out the relevant criteria for determining when such an order will be necessary. It also makes it clear that the before it can act under the section, the Court must be satisfied that the Will does not make adequate provision for the proper maintenance of a person. It states:
91. Power of the Court to make maintenance order
1.Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had a responsibility to make provision. Under sub-section (1) in favour of a person unless the Court is of the opinion that distribution of the estate of the deceased person affected by –
(a)his or her will (if any); or
(b)the operation of the provision of Part I, Division 6; or
(c)both the will and the operation of the provision – does not make adequate provision for the proper maintenance and support of a person.
4.The Court in determining –
(a)whether or not the deceased had a responsibility to make provision for a person; and
(b)whether or not the distribution of the estate of the deceased person is affected by –
(i)the deceased’s will; or
(ii)the operation of the provisions of Part I, Division 6; or
(iii)both the will and the operation of the provisions –
make adequate provision for the proper maintenance and support of the person; and
(c)the amount of provision (if any) which the Court may order for the person; and
(d)any other matter related to an application for an order under sub-section (1) must have regard to
(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;
(f)any obligations or responsibilities of the deceased person to the applicant and any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any changes and liabilities to which the estates is subject;
(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;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j)the age of the applicant;
(k)any contribution (not for adequate consideration of the application to building up 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;
(m)whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, whether the Court considers it is relevant, the extent to which and the basis upon which the deceased assumed that responsibility;
(n)the liability of any other person to maintain the applicant;
(o)the character and conduct of the applicant or any other person;
(p)any other matter the Court considers relevant.
Legal principles
The Court is required by the legislation to consider these questions:
1.Did the testator have a moral duty to make provision for the plaintiff?
2.If so, did the testator fail to make adequate provision for their maintenance and support of the plaintiff?
3.If so, should the Court make an order for provision?
The legal principles have been thoroughly explored in the case law. Bell J explained this approach in Whitehead v State Trustees Ltd:[2]
In other Australian jurisdictions, the comparable legislation requires the court to consider two issues. Whether the deceased left the person without adequate provision for their maintenance and support (the jurisdictional question) and whether the court should make an order for provision (the discretion question). As the first issue involves the deceased’s moral responsibility to make provision (if any), the date at which this matter is considered is the date of death of the deceased. All of the material facts and circumstances which existed at that date are considered, whether or not the deceased knew of them, as well as all of those facts and circumstances which were reasonably foreseeable at that time.
As the second issue involves determining what (if any) provision the court should make in the exercise of its discretion for the proper maintenance and support of the person, this matter is considered at the date of making the order. All of the material facts and circumstances existing at that time are taken into account.
In Victoria, the legislation requires the court to consider three issues: whether the deceased had a responsibility to make provision, whether the provision (if any) was adequate for the proper maintenance and support of the person and (if not) what amount of provision (if any) should be ordered.
The first and second issues which must be considered under the legislation in Victoria fall into the same categories as the first issue which must be considered under the comparable legislation in other jurisdictions. The third issue which must be considered under the legislation in Victoria is the same as the second issue which must be considered under the legislation in other jurisdictions. Therefore, in Victoria the date for the consideration of the first and second issues is the date of death of the deceased and the date for the consideration for the third issue is the date of the making of the order (if any). That was the approached followed in the application of the previous legislation in Victoria, which was based on the two-stage process.[3]
[2][2011] VSC 424.
[3][2011] VSC 424, [59] – [63].
It is clear that in the case before me, the deceased had a moral duty to make provision for the plaintiff. In his will, the deceased fulfilled this obligation to make provision for the plaintiff, leaving her more than $520,000. However this is not the end of the inquiry: the further question before the Court is whether this amount was adequate, in all the relevant circumstances.
It is important to note that the gender of the plaintiff no longer plays a central role it once did in this kind of application, and there is no longer any need for the plaintiff to show she has a special need or claim.
There is no doubt that, in most cases, parents have a moral duty to provide their children with some funds in their estate. In Taylor v Farrugia,[4] Brereton J of the New South Wales Supreme Court expounded upon the “moral obligation” a testator might have to his or her adult children:
These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation and community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible, where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such to justify it, there might be such an obligation [McGrath v Eves [2005] NWSSC 106]. Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else [such as a spouse], who has a prime obligation to do so. Plainly, if an adult children remains a dependent on the parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.[5]
[4][2009] NSWSC 801.
[5]Taylor v Farrugia [2009] NSWSC 801, [57] – [58].
What is adequate and proper provision will be determined by the relevant factors set out in the Act in s 91(4)(e) – (p).
In Collicoat v MacMillan,[6] the testator had three children, two daughters and one son. She had a relatively small estate, with the major part being a farm she owned, which had been the family farm. Of particular interest is the testator’s son, who had been left an equal share of a legacy along with his two sisters. The son of the testator’s son was left the family farm, which was the majority of the estate. He leased the farm for the past eight years for a nominal sum and worked on it during this time.
[6][1992] 2 VR 803.
The testator’s son had worked on the testator’s farm for around 30 years with very limited remuneration. He had left the farm eight years before the testator died and his son took over the running of the farm. In addition, he was a bankrupt with very limited means. Ormiston J held that this long period of labour on the farm and that he was the “lame duck” of the family entitled him to a greater share of the estate:
I have reached the conclusion that as a wise and just testator she should have provided more for [the testator’s son] for two principal reasons. First, he had worked, for at first little and thereafter for modest recompense, on his parents’ property for over 30 years and, with one minor break, fulltime for close to 25 years. Secondly, he was the “lame duck” of the family, he was a person who had never really made a success of life, a person whose lack of success may well have been engendered by the rather bare subsistence that he earned on the farm at the hands of his mother and a person who, when he found all this too much and his marriage broke up, was unable to cope, lost all his meagre assets, became bankrupt and was reduced to earning a desultory living on an ad hoc basis and relying only on his unskilled talents. It is essentially those two elements of his claim which I believe the testator overlooked and which should fairly lead to a conclusion that, having regard to all the circumstances at the date of her death, she did not make adequate provision for his proper maintenance and support.[7]
[7]Ibid, [63].
In Markovska v Kocevska,[8] the testator had three adult daughters. He left two of his daughters $25,000 each and the other the remainder of the estate, worth $240,000. The plaintiff was unsuccessful in claiming she deserved a larger portion of the estate. She was in a financial parlous position, and had two sons with drug problems and who were on disability pensions. The daughter who had inherited the majority of the estate had cared for the deceased for the last two years of his life pursuant to an agreement made between the sisters. Byrne J explained his decision:
In reaching this conclusion, I do not rely upon the so-called April 2000 agreement. A father does not bargain away his moral responsibilities any more than a daughter can purchase them. This is a case where a father has, in his previous dealings, sought to achieve an equality between his three daughters for each of whom he evidently had an affection. Indeed, a characteristic of the family as it appeared to me was the existence of a strong bond between the sisters and their families and a readiness to provide support and assistance for their parents and for each other. The deceased, for example, was ready to provide money without interest for the needs of Marija and Liliana. This was evident, too, in the generous attitude of Liliana in providing accommodation and financial support for her parents and sisters and her fondness of Elena and a sympathy towards the unfortunate sons of Vicki. Returning to the position as it appeared to the deceased in 2000 when the time came to decide what to do with the house in Northcote, it was once again a family home for himself and his daughter who had little assets or income. And this remained the situation until the date of his death. He was entitled, in my view, to see his responsibility as primarily that of providing a continuing home for her and for her teenage daughter. He was entitled to view his responsibility in that way notwithstanding that it was at the expense or expectancy of his other daughter, Vicki. The application must fail at this point.[9]
[8][2005] VSC 319.
[9]Ibid, [27].
In Litchfield v Smith and Tingate,[10] the testator had two daughters and one son. One daughter (64) and one son (62) had been financially successful, with a good income and assets. The other daughter, the youngest (56), was in a very poor financial position. She blamed this position, in part, on her parents’ conduct towards her. In particular, she contended that they required her to finish school early so they could go travelling, they abandoned her when she was living with her first husband before they were married, and they refused to provide her will fulltime childcare when her first marriage broke down. The testator left this daughter with two properties, one a house she had been living in and also a tenanted commercial property. The siblings were also left properties of fairly similar value. The youngest daughter made an application under s 91.
[10][2010] VSC 466.
Hargrave J found in favour of the plaintiff. After considering each of the criteria mandated by s 91 separately, his Honour set out the six factors on which he found what the youngest was left, was inadequate:
1.Her income was “modest and barely enabled her and her husband to make ends meet”. This was the case even though she was not paying rent.
2.The extra income from the commercial property she was left was not sufficient to meet her need for further income as she would still be in a position of need, and unable to provide more than the “bare necessities” of life. She also had costs involved with owning the commercial property and her car.
3.The gift of one-third of the residuary of the estate (about $40,000) was not enough to meet her immediate and likely future capital needs. This included health treatment, property maintenance and costs associated with owning a car.
4.Even if the money from the commercial property and the gift from the residue was enough to meet the immediate needs of the youngest daughter, it would not continue to meet them into the future. The fact of her age and dependency on the print industry for an income meant that her income stream would not last long.
5.The estate was large enough to provide for further provision to her without unduly prejudicing her siblings.
6.The conduct of her parents is of some relevance – if she had continued to get an education, the course of her life may have been different. However, this fact was of least significance and the same result would have been reached without it.[11]
[11]Ibid, [59] – [70].
In Vincent v Rae,[12] Hansen J found in favour of the plaintiff, who was one of the four daughters of the testator. The plaintiff had not been left any money or assets under the will. She had fallen out with her mother in the 1980s and her mother had made an arrangement with two of her siblings to leave the entirety of the estate to them in return for their continued work in the family. Prior to the falling out with her mother, the plaintiff had worked for a number of years on the family farm without pay. In addition, whilst she owned a farming property with her husband, she was quite income poor. After considering each of the criteria required by the legislation, Hansen J found that her mother failed to properly provide for her in the will. Of particular importance was her poor financial position and her contribution to the farm, without pay, in the late 1970s and early 1980s.
[12][2006] VSC 346.
As noted, jurisdiction to make an order under Part IV of the Act is dependent upon being first satisfied that the deceased had a responsibility to make provision for the plaintiff and second upon being satisfied that the will does not make adequate provision for the proper maintenance and support of the plaintiff. Nettle J in McKenzie v Topp[13] said:
Each condition invokes consideration of the question of what is the provision that a wise and just stepmother would have thought it her moral duty to make in the interests of the stepson had she been fully aware of all the relevant circumstances. The question is to be answered as at the date of death according to the standards of a wise and just testatrix – or, in other words, according to the standards of a fair and reasonable woman in the community – and in answering the question the Court is bound to have regard to the factors adumbrated in s 94(4)(e)-(o), as well as to any other matter that the Court considers relevant.
[13][2004] VSC 90 at [15].
The plaintiff in the case before me is obliged to show that the deceased failed in his will to make adequate provision for her maintenance and support. Any alleged failure must be judged as at the date of the deceased’s death, having regard to the value of the estate at that time, the plaintiff’s claim upon the bounty of the deceased and the competing moral claims of the actual beneficiaries in the will.
Consideration of what was adequate and proper was dealt with by Dixon CJ in Pontifical Society for Propagation of the Faith v Scales:[14]
It has often been pointed out that the very important words in the statute are “adequate provision for the proper maintenance and support” and that each of these words must be given its value. “Adequate” and “proper” in particular must be considered as words which must always be relative. The “proper” maintenance and support of the son claiming the statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is “adequate” must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and other demands upon it, and also what the testator claims or preferable dispositions. The words “proper maintenance and support” although they may be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only discretion as to the nature and amount of the provision it directs, but what is even more important, is discretion as to making a provision at all. All authorities agree that it was never meant that the Court should rewrite the will of the testator. Nor was it intended that the freedom of testamentary gifts should be so encroached upon that the testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.
[14][1962] HCA 19; (1962) 107 CLR 9, [19].
In determining what is adequate and proper, the Court’s approach to quantum of provision is careful and conservative.[15] Further, in order to succeed in an application under Part IV of the Act there must be a need shown by the plaintiff. This is a relative concept and one which has to be considered in the circumstances of each case. As noted in my decision of Hyatt v Covalea,[16] it is recognised that an adult child, who is capable of supporting themselves comfortably, may have difficulty demonstrating any breach by his or her parent of a moral obligation to make adequate provision for his or her proper maintenance and support.
[15]Tavra v Petelin & Anor [2011] VSC 359, [41].
[16][2011] VSC 344, [89].
While the concept of need is a relative concept, it must be shown in order to establish a claim.[17] It should be noted that it is not confined only to economic need.[18] A plaintiff does not need to show necessitous circumstances and where circumstances permit it, a testator should go beyond merely providing for the bare necessities in life.[19]
[17]MacEwan, Shaw v Shaw (2003) 11 VR 95, [50].
[18]Unger v Sanchez [2009] VSC 541, [78].
[19]Blore v Lang (1960) 105 CLR 124 at [135] per Fullagar and Menzies JJ.
There is no principle that a testator should treat his children equally.[20] What the Court must do in making orders for provision is to make whatever provision ought to be made, having regard to the factors set out in s 91(4)(e) – (p). These factors include having regard to the relationship of the applicant with the deceased person, the extent of the applicant’s assets, the extent of the deceased’s assets and the other legitimate claims upon the bounty of the deceased.
[20]Blore v Lang (1960) 104 CLR 124 at [135] per Fullagar and Menzies JJ; Anderson v Teboneras at [534].
The evidence
The following affidavits were relied upon by the plaintiff:
1.plaintiff’s affidavits sworn 28 September 2012 and 20 February 2012;
2.Gareth James Kent’s affidavit sworn 28 December 2012.
The plaintiff and Mr Kent gave viva voce evidence.
The following affidavits were relied upon by the defendant:
1.the defendant’s affidavits sworn 15 November 2012, 23 September 2013 and 10 October 2013;
2.Chrystalla Mounas’ affidavit sworn 13 November 2012;
3.Dimitrious Tomoras’ affidavit sworn 14 November 2012;
4.John Azis’ affidavit sworn 14 November 2012.
The defendant and Chrystalla Mounas gave viva voce evidence.
In 1956 the plaintiff’s parents moved to Geelong West and purchased a fish and chip shop located at 116 Pakington Street. They ran the fish and chip shop with the assistance of their children until late 1976, when they leased the business to a third party. The family lived in a house at the back of the shop. The family lived at 116 Pakington Street until 1963, when they moved to 225 Pakington Street, Geelong West, where the plaintiff’s parents purchased a house that was the family home. The plaintiff and her sister worked in the fish and chip shop throughout their childhood and adolescence. The defendant also worked in the fish and chip shop but to a lesser extent as he was the youngest child.
Throughout their childhood, the family did not engage in many recreational activities given the fish and chip shop was open seven days per week and would close at approximately 8.00pm Monday to Friday and 9.00pm on the weekends.
The plaintiff described her childhood as typical of a child in an immigrant family trying to establish themselves. The plaintiff’s parents were unable to take much time off work as they did not have employees in the business.
The plaintiff completed her secondary schooling at Matthew Flinders Girls’ Secondary College. She left school at 17 years of age in 1970. In 1971, the plaintiff enrolled in the Geelong Business Academy where she gained training in secretarial and administrative skills. The course was one year and during that time the plaintiff worked in a local cake shop.
In 1972, after completing the course, the plaintiff found employment in Melbourne and worked in various secretarial and administrative roles, including two years at the Commercial Bank of Australia.
On 13 September 1975, the plaintiff married her husband, Basile Anastopoulous. The plaintiff and her husband had four children: Nicole, born 13 October 1976; Maria, born 5 May 1978; Perry, born 7 February 1982; and John, born 24 February 1984.
The plaintiff ceased work to raise her children. Her husband worked in a family seafood business called Coastal Seafoods located in Belmont. The business operated two scallop trawlers. The plaintiff’s husband worked in the seafood business from 1972 to 1999. After the seafood business, the plaintiff’s husband worked in various part‑time jobs as a maintenance fitter. The plaintiff’s husband was born on 15 February 1945 and is currently 64 years of age. The plaintiff’s husband is retired. On 22 April 2012, the plaintiff’s husband had a triple heart bypass.
Consideration of the factors identified by s 91(4) of the Act
Section 91(4)(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
Evidence of the plaintiff
The plaintiff described having a very close relationship with her father. She said that her father was good to her and that they were there for each other at all times.
The plaintiff denied that her relationship with her father deteriorated at any time and described sharing a very close, loving and strong bond with her father.
The plaintiff’s evidence is that she continued to see her parents at least three times a week after they leased the fish and chip shop and that her parents would visit her and her husband and babysit their children.
The plaintiff said that after her mother’s death in 1991, she and her sister supported her father by preparing meals, doing shopping and cleaning the house from time to time.
The plaintiff’s evidence is that after her mother died, she provided her father with moral and emotional support and assisted him with his shopping, paying bills, taking him to the bank and taking him to numerous appointments such as physiotherapy after his stroke and medical visits.
The plaintiff described how her father was there for her if she needed help and would often ask how she was financially and if she needed assistance.
In the mid-1990s, the deceased accompanied the plaintiff’s family on holidays to Queensland, including the Gold Coast and Sunshine Coast for three to four weeks.
In approximately 1993 or 1994, the deceased stopped driving due to medical reasons and required additional assistance with transportation. The plaintiff says that she was able to assist her father as she was only working part-time and typically started at four in the afternoon.
The deceased had a stroke in February 1994 and was admitted to Geelong Hospital. After he was discharged from hospital the plaintiff cared for the deceased in her home for approximately six months. The plaintiff describes supporting him emotionally and assisting him in daily living. She helped him by cooking for him, cleaning, shopping and running errands on his behalf.
In July/August 1997 or 1998 the deceased had a heart attack which required cardiac surgery by way of a bypass operation. The deceased was unable to care for himself at home following the surgery and the plaintiff looked after the deceased for a further six months in her home.[21] During this period, the plaintiff describes her father being too frail to care for himself and requiring 24 hour care and support which she and her family provided to him.
[21]Transcript 16 October 2013, p 46, lines 2-6.
The plaintiff described her father’s behaviour as beginning to change in the last five years of his life. She said that he was becoming very forgetful and gave examples of him losing his keys and locking himself out of his home.
The plaintiff’s evidence was that while her father was in Brentwood Nursing Home she would visit him nearly every second day. At the time, the plaintiff was working part‑time as a cleaner, commencing at four in the afternoon to 7.00pm.
Evidence of the defendant
The defendant says that on the whole the plaintiff did not have a very close relationship with the deceased. He described their relationship as distant and poor.[22] The defendant considered that there was a breakdown in the relationship between the plaintiff and the deceased over the years leading up to his death. The defendant asserts that the reasons for the breakdown in the relationship include the misappropriation of rental monies, the plaintiff’s temper and use of foul language directed at the deceased, and the plaintiff failing to visit or neglect the deceased’s needs.[23] I am not satisfied that there was sufficient evidence to support the defendant’s assertion that the plaintiff misappropriated money from the deceased, or that her behaviour was of the kind described by the defendant. Further, I accept the plaintiff did visit the deceased and did not neglect his needs.
[22]Affidavit of Jim Demetrious sworn 15 November 2012, [4].
[23]Ibid.
The defendant maintains that the plaintiff kept a distance from her father in numerous small ways. For example, the plaintiff did not provide any meals or treats to the deceased in his later years, and when he was residing at Brentwood Nursing Home she did not attend to the deceased’s clothing or personal needs.
The defendant disputes that the plaintiff provided the deceased with moral and emotional support.
The defendant says that the plaintiff played no role in putting into place the multiple levels of care that assisted the deceased with living independently for 11 years at 2 Thomas Street and further disputes that personal services were provided by the council. Instead, the defendant gave evidence that they were provided by individuals employed by the deceased and the defendant.
The defendant describes himself in terms of the deceased’s health as being the primary care giver, which included regular interaction with Aged Care staff and the deceased’s general practitioner, pharmacy and hospital visits.
The defendant says that he organised for his father’s care while he was living at 2 Thomas Street. By way of example, the defendant says that he organised “Best of Care” as the deceased personal carers to attend to his needs three days a week, and the attendance on alternate days of a housekeeper and cook. The defendant says that the deceased would say to him that the plaintiff would never visit him and that she would be the first one there when he was dead.[24]
[24]Affidavit of Jim Demetrious sworn 15 November 2012, [7].
The defendant agrees that the deceased may have spent some time convalescing at the plaintiff’s home but that it would have been for days or weeks, not months. The defendant agrees that in 1998, after the deceased’s cardiac surgery, the plaintiff assumed a caregiver role.
The defendant maintained that the turning point in the relationship between the plaintiff and the deceased was in 1998 after the deceased’s bypass surgery. The defendant’s evidence is that he was responsible for finding a nursing home for the deceased.[25]
[25]Transcript 17 October 2013, p 124, line 6.
In cross‑examination the defendant conceded that he had had discussions with the plaintiff about possible nursing homes for the deceased and that the plaintiff had visited possible nursing homes for the deceased.[26]
[26]Transcript 17 October 2013, p 125, line 31; p 126, lines 1-10.
Evidence of Chrystella Mounas
Evidence was also given by Chrystella Mounas, the deceased’s sister. Mrs Mounas described the defendant as being the key person in the deceased’s life. She agreed that the plaintiff would visit her father on occasions when he was still living independently but noted that the plaintiff never brought food for her father.
Mrs Mounas described the plaintiff as tending to exaggerate events such as the description of the deceased becoming forgetful and losing his keys. Mrs Mounas’ evidence is that this related to an incident where the deceased had dropped his keys when travelling home from the supermarket on his scooter without noticing.
Other evidence
The Court also received evidence by way of affidavit from two of the deceased’s friends, Mr Dimitrious Tomoras and John Azis. Mr Tomoras’ affidavit, sworn 14 November 2012, notes that there appeared to be tension and disrespect between the deceased and the plaintiff and her husband. He recalled offensive name calling and disrespectful behaviour from the plaintiff and her husband. However, Mr Tomoras noted that the plaintiff’s husband would play cards with him and the deceased sometimes.
Mr Tomoras recalls that the deceased would often complain that the plaintiff did not care about him and that she did not cook for him.
Mr Azis’ evidence is that he would see the defendant and his family visiting the deceased up to five times a week, but that he only ever saw the plaintiff at the nursing home twice. Mr Azis’ evidence is that the deceased complained to him that the plaintiff would say things just to upset him and did not care for him and did not bring him food or make him a meal. This was disputed by the plaintiff.
Findings
In relation to Mr Azis’ evidence, while he maintains that he only saw the plaintiff at the Brentwood Nursing Home on two occasions, that does not of itself mean that the plaintiff did not attend the nursing home on the regular basis. Mrs Mounas’ evidence is that the plaintiff visited the deceased on occasion. As such, I accept the plaintiff’s evidence that she visited her father regularly while living independently at 2 Thomas Street and when he was living at the Brentwood Nursing Home.
I also accept that the plaintiff was involved in organising the deceased’s care and eventually his admission into Brentwood Nursing Home alongside the defendant.
Importantly, I accept that on two separate occasions following the deceased having serious medical problems, the plaintiff cared for the deceased in her home with the assistance of her family. I accept that the periods of care extended up to six months on two separate occasions in or about 1994 and 1998.
It is clear that the plaintiff continued to have an ongoing role in the deceased’s life right up until his death and, as noted, played a significant role as a primary carer for extended periods in her own home. Looking at the totality of the evidence, I accept that the plaintiff had a close and loving relationship with her father right up until the time he died.
Only Mr Tomoras made reference to “disrespectful behaviour” from the plaintiff and her husband towards the deceased. This was denied by the plaintiff and there was no support for the allegation from the other witnesses, notably Mrs Mounas who gave viva voce evidence.
Section 91(4)(f) - any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate
This criteria is not applicable in this case. Neither party claims they were dependent on the deceased beyond their childhood.
Section 91(f)(g) - Size and nature of the estate of the deceased person and any charges/liabilities to which the estate is subject
As set out above, the present day value of the estate is in the range of $3,587,000 to $4,057,000, depending upon the value of the Pakington property.
The value of the Pakington property
The parties disputed the value of the Pakington property.
The plaintiff relied on the evidence of Mr Gareth Kent. Mr Kent is a qualified property valuer, specialising in commercial property. Mr Kent is a principal of the firm Preston Rowe Paterson (National Property Valuers and Consultants).
Mr Kent prepared a written valuation dated 13 September 2013. The valuation was prepared in accordance with the Australian Property Institute (“API”) Valuation and Property Standards 2008. Mr Kent’s valuation as at 13 September 2013, is that the Pakington property has a market value of $2,150,000.
In arriving at the assessment or the property’s value, Mr Kent adopted the income capitalisation approach to value as the primary valuation method. He adopted the direct comparison approach as a secondary check method only. It is interesting to note that the valuation of the property using the income capitalisation was $2,110,000 and the direct comparison method $2,160,000.
I accept that the methodology adopted by Mr Kent is in accordance with the API‘s Australian Standard.
The defendant submits that the Pakington property has a market value of $1,690,000. The defendant has not put any expert evidence before the Court to contradict Mr Kent’s evidence.
It was suggested by the defendant’s counsel that the Pakington property ought to be regarded as more active investment rather than passive investment, having regard to its age and condition. Counsel for the defendant submitted that a capitalisation realisation factor of 7.6% was appropriate rather than 6.5% as adopted by Mr Kent.
The difficulty with this submission is that Mr Kent is a qualified valuer and prepared the valuation in accordance with the API’s Australian Standard. Mr Kent gave his evidence in a professional and thoughtful manner. In the circumstances, I accept the valuation of the property as provided by Mr Kent, of $2,150,000.
As such, I am satisfied that the present day value of the estate is approximately $4,057,000.
Section 91(4)(h) – the financial resources (including earning capacity) and financial needs of applicant, or any another other applicant and/or beneficiary
The plaintiff currently works as a cleaner on a part-time basis from Monday to Friday from 4.00pm to 8.30pm. She earns $29,000 per annum. The plaintiff said that her hours of work increased approximately one year ago. The plaintiff expects to continue to work at this level until she is 65 years of age.[27]
[27]Transcript 16 October 2013, p 20, lines 20–29.
The plaintiff’s husband is 67 years of age and is now retired. As noted, he had a triple bypass surgery in 2012. Last financial year he earned $40,000, excluding his pension. The plaintiff and her husband own their own home located at 27 Jedda Street, Bellpost Hill, Victoria. Their home is valued at approximately $435,000. At the time of swearing her first affidavit, the plaintiff and her husband had the following combined assets:
27 Jedda Street $435,000
combined savings $55,000
combined superannuation $75,000
TOTAL:$565,000
On the first day of trial, 16 October 2013, the plaintiff’s evidence was that the combined superannuation was $110,000 and the combined savings was $80,000.
In cross‑examination, the plaintiff was unable to explain how their combined superannuation had increased $35,000 in the last year.
The plaintiff’s husband receives a part-pension entitlement of $290 per fortnight. The plaintiff and her husband do not receive any income from investments. They do not have any debts and their four children have moved out of home.
The plaintiff said she was not aware of any medical conditions which would reduce her life expectancy.
The plaintiff’s assets, excluding her entitlement under the deceased’s will, at the time of the deceased’s death, total approximately $565,000. Combined with what she was left under the will, the plaintiff’s pool of assets total approximately of $1.117 million. This is made up of the addition of $520,000 the plaintiff inherits under her father’s will, the rent from 2 Thomas Street from the date of the deceased’s death which is approximately $22,000, plus the value of the plaintiff’s family home.
In cross‑examination the plaintiff was asked a series of questions about her financial status and how they manage:
Let me ask you this: do either you or your husband get any income or payments now - ?---No, we don’t.
…
You and your husband are able to meet all living expenses, aren’t you?
---Yes.You can pay all your bills and outgoings?---Yes.
And you are able to save, obviously?---Of course.
I would suggest to you that you and your husband enjoy a fairly comfortable lifestyle?---We do.[28]
[28]Transcript 16 October 2013, p 27, lines 16-24.
The plaintiff gave evidence that in the last five to six years she had two overseas trips and also had some trips within Australia over her married life.[29]
[29]Transcript 16 October 2013, p 21, lines 10-12, lines 29-31; p 22, line 23.
The defendant does not put forward any competing financial needs.
Section 91(4)(i) – any physical, mental or intellectual disability of any applicant or any beneficiary of the estate
Not applicable.
Section 91(4)(j) – the age of the applicant
The plaintiff is 60 years old.
Section 91(4)(k) – any contribution (not for adequate consideration) of the applicant to building up the estate or for the welfare of the deceased or the family of the deceased
Evidence of plaintiff
From approximately ten years of age, the plaintiff helped her parents by working in the fish and chip shop which they purchased in 1963.
The plaintiff and her sister were expected to work seven days per week after school and on weekends and were not paid for their work.[30]
[30]Affidavit of Helen Anastasopoulos, 28 September 2013, [9] and [10].
In the plaintiff’s supplementary affidavit dated 20 February 2013 she provided details of the type of work that she and her sister performed in the fish and chip shop. The plaintiff’s evidence was that during schooldays she would rush home from school during lunchtime to assist with the lunchtime rush at the fish and chip shop. After helping at the shop in the lunchbreak she would quickly eat her own lunch and return to school.[31]
[31]Affidavit of Helen Anastasopoulos, 20 February 2013, [98].
The plaintiff also gave evidence that when she was at high school it was her job to help prepare homemade chips. The task was described as very labour intensive.[32] The chip making was done before school and after school and would involve approximately two to three hours per day.
[32]Ibid, [99]-[100].
The plaintiff’s evidence is that after school she would come home, have a snack and then work in the shop until 8.00pm. The plaintiff said it was very difficult to do her homework because of the time spent in the shop.
On Saturdays the plaintiff and her sister would scrub and hand polish the floor in front of the fish and chip shop. The remainder of the day was spent peeling and preparing the chips for the busy Saturday trade. On Sundays the shop did not open until late in the afternoon. From approximately 15 years of age onward the plaintiff’s tasks at the fish and chip shop included taking orders in the shop and the plaintiff assisted with cooking the fish and chips.
The plaintiff’s evidence was that as the shop got busier, given her parents did not engage employees, she and her sister took on more responsibility in the shop and around the household with domestic chores.
The plaintiff left school at 17 years of age but continued doing similar tasks in the fish and chip shop. After leaving school the plaintiff found a job in Melbourne in a cake shop. On her days off, weekends and holidays she continued to work in the fish and chip shop. The plaintiff stopped working in the fish and chip shop when she was married in September 1975. The deceased leased the fish and chip shop in 1976.
The plaintiff deposes to being tired from work at the fish and chip shop and being at the shop for long periods of time which made it difficult for her to concentrate and apply herself to school. The plaintiff said that because she was the eldest sibling she was in the position to assist her younger sister and brother and this included helping them with homework and school projects. The plaintiff said that she struggled with English and mathematics and was not offered private tuition or assistance by her parents. She recalled that the week prior to and during exams her parents excused her from working in the shop to enable her to study.[33]
[33]Affidavit of Helen Anastasopoulos, 20 February 2013, [106]-[109].
The plaintiff said that in her final year of school her results were not sufficient to enable her to enrol at university.
The plaintiff said that her parents worked extremely hard to give the children the best life they could provide.[34]
[34]Affidavit of Helen Anastasopoulos, 28 September 2013, [77].
In cross‑examination the plaintiff accepted that her schooling and one year course at business college enabled her to obtain a secretarial position working for the Commonwealth Bank. The plaintiff agreed that she only stopped working to stay home and care for her children.
In addition to helping by working in the fish and chip shop, the plaintiff’s evidence was that she also assisted her father with some of the bookkeeping in relation to the business. The plaintiff’s evidence was that she commenced this from about 13 years onwards until she got married in 1975.
The plaintiff’s evidence was that in relation to the bookkeeping she just assisted her father with keeping matters on track, by recording outgoing expenses and the incoming takings for the day.
The plaintiff admitted that she was not exploited by her family.[35]
[35]Transcript 16 October 2013, p 32, lines 11-13.
Evidence of defendant
The defendant’s evidence in relation to the plaintiff’s contribution towards the fish and chip shop was that she exaggerated her contribution.[36] The defendant described the fish and chip shop as “a very manageable business”.[37]
[36]Transcript 16 October 2013, p 100, line 23.
[37]Transcript 16 October 2013, p 100, lines 26.
The defendant’s evidence was that the plaintiff was never involved in the deceased’s financial management. In relation to the bookkeeping, he was asked:
Are you now saying that she was never involved in the financial management?---I am.
That includes not doing the bookkeeping?---I don’t – I wouldn’t interpret that as financial management. If you were to just record numbers it is simply a recording task, it’s not a financial management task. You may see it differently.
You agree – let me ask you this. Do you agree that the shop didn’t have any employees?---Correct.
No-one outside the family ever worked in the shop and was employed to do that?---All for except a small period of time when - - -
Helen says that from the age of eight she started doing housework when your parents were busy in the shop and that included washing dishes, making beds, setting and cleaning the dining table and she did that with Betty?---I would have been four at the time so I can’t really comment.[38]
[38]Transcript 16 October 2013, p 102, lines 15 -26 and p 103, lines 1-8.
In cross‑examination the defendant agreed that the plaintiff and her sister looked after him when their parents were working at the shop and he was unable to recall whether or not the plaintiff was working in the shop or looking after matters in the home when he was young.
The defendant’s evidence was that all of the children assisted in the chip making, including himself, and that he did not think it was a difficult task.
The defendant denied that the plaintiff would work in the fish and chip shop in the morning from approximately 14 to 15 years of age to help prepare the chips.[39]
[39]Transcript 16 October 2013, p 105, lines 19-21.
Findings
On the whole, I accept the plaintiff’s evidence about the hours she worked in the shop and the contribution she made to the family home by looking after her younger brother and contributing to work in the family home. The plaintiff provided detailed evidence in her affidavits about the nature of the work that she did in the fish and chip shop and in particular the task of preparing the chips.[40] I accept, given there were no employees, the plaintiff’s evidence that she worked up to three hours per day in the shop.
Section 91(4)(l) – any benefits previously given by the deceased person to any applicant or to any beneficiary
[40]Affidavit of Helen Anastasopoulos, 20 February 2013, [99]-[103].
The plaintiff was given a dowry of $3,000 on her marriage by the deceased. The plaintiff also received a gift of $30,000 from the deceased when he sold a property located at 30A Collins Street, Geelong West. The defendant and the plaintiff’s deceased sister were given the same gift of $30,000 at the time of the sale of 30A Collins Street.
Section 91(4)(m) – whether the applicant was being maintained by the deceased person before the person’s death either wholly or partly and, whether the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed responsibility
The plaintiff was not being maintained by the deceased. Accordingly, this section is not applicable in this case.
Section 91(4)(n) – the liability of any other person to maintain the applicant
The plaintiff is a married woman and the plaintiff’s husband has a obligation to maintain her.
Section 91(4)(o) – the character and conduct of the applicant or any other person
The defendant submits that the plaintiff is not guilty of what is usually termed “disentitling conduct”. However, the defendant submits that the plaintiff exaggerated her contact and level of care for the deceased in his later years, including the number of visits to the deceased in the Brentwood Nursing Home and the number of times she took him out on visits.
The defendant also submits that the plaintiff’s explanation as to her working hours was all over the place and that the Court should not accept the plaintiff’s evidence that she saw her father at approximately 7.00pm every second day in the nursing home. The defendant also gave evidence that he considered that his sister’s evidence about her contribution towards the fish and chip shop was an exaggeration.
I have already dealt with the issue of the plaintiff’s care of the deceased and whether or not she visited the deceased at the Brentwood Nursing Home. As discussed, I accept the plaintiff’s evidence that she did visit her father at the Brentwood Nursing Home.
The evidence is that the plaintiff took her father to a niece’s wedding in November 2011 and that she took him out approximately once a week. There was no evidence before the Court to refute that.
There was an issue about the hours the plaintiff worked and how she could have possibly visited her father before and/or after work given her hours of employment. The plaintiff explained that she increased her working hours in the last year. Again, I accept the plaintiff’s evidence on the issue of her visits to her father. In cross‑examination it was put to the plaintiff quite forcefully that given her working hours she could not have been visiting at the time she said she was.
Mrs Anastasopoulos, I take it that when you swore your affidavits back in September last year and February this year, you read them very carefully to make sure that the contents were true and correct?---Yes.
And you understand that when you swear an affidavit, you swear on the Bible that the contents are truthful?---Yes.
Were the contents of your affidavit truthful?---Yes.
Is the evidence you have given here today truthful?---Yes.
As I understand your evidence, and you have said this in the affidavit and repeated it this morning, you finish work at eight o’clock five nights a week on Monday to Friday?---Yes.
You understand if that is the case, you could not have been visiting your father in the Brentwood Nursing Home every other night at seven o’clock? Could you?---Can I explain that.
Well?---Because of –
You could not be?---My hours were changed. I used to work two hours and it’s been lately, recently, that I’ve been having – I have extended hours. At that time I was only working four to seven.
You are changing your evidence to suit yourself, aren’t you?---No.
Your working hours are four to eight o’clock, aren’t they, and they have been that for some 16 years, I suggest to you?---No, I did not have the same hours that I have now at that time. I started with less hours and it was this year that my hours increased.[41]
[41]Transcript 16 October 2013, p 40, lines 2-29.
The plaintiff’s evidence in relation to her hours and her ability to visit her father at the Brentwood Nursing Home was somewhat unclear. It is not abundantly clear when the plaintiff’s working hours increased. However, on the whole, I accept that the plaintiff did visit her father regularly at the Brentwood Nursing Home. Whether this was every second day or not is difficult to know.
The evidence of Mr Asiz and Mr Tomoras does not contradict the plaintiff’s evidence that she visited her father at Brentwood Nursing Home and that she would take him items such as chocolate, fruit or toothpaste or other personal items.[42] There was no evidence disputing the plaintiff having brought her father a birthday cake on his last birthday to share with him and the staff.[43]
[42]Affidavit of Helen Anastasopoulos, 20 February 2013, [83].
[43]Affidavit of Helen Anastasopoulos, 20 February 2013, [83].
Section 91(4)(p) – any other matter the Court considers relevant.
There are no additional matters that I consider relevant in the circumstances of this case.
Did the deceased fail to make adequate provision for the maintenance and support of the plaintiff?
As noted, this issue must be considered at the date of the death of the deceased. There is no issue in dispute in this case that the deceased had an obligation to make provision for the plaintiff. The only question is whether or not the provision made under the will is adequate and proper for the maintenance and support of the plaintiff.
The defendant submits that the plaintiff’s present and foreseeable needs are well and truly adequately and properly provided for.[44]
[44]Defendant’s written submissions, [11].
The starting point in any Part IV application under the Act is that the testator and/or testatrix has the freedom to leave his or her property in whatever way he or she wishes.
The plaintiff felt aggrieved about the different way in which she was treated under her father’s will compared to her brother. In her evidence she conceded that receiving anything less than an equal share was unfair.[45] The plaintiff agreed it was wrong that her father did not treat her and her brother equally.[46]
[45]Transcript 16 October 2013, p 47, line 3.
[46]Transcript 16 October 2013, p46, lines 29-30.
The Court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst beneficiaries or claimants.
The Court’s role goes no further than making adequate provision for the proper maintenance and support of the plaintiff.
What is proper provision for the maintenance and support of the plaintiff involves the consideration of the factors set out in s 91(4)(e) to (p). Thus, factors such as the plaintiff’s age, health, financial resources, the size and nature of the testator’s estate, the plaintiff’s station in life and the relationship between the plaintiff and testator and other persons who have legitimate claims on the estate are relevant factors.
The evidence demonstrates that the plaintiff and defendant grew up in a traditional Greek migrant home. The family worked seven days per week in the fish and chip shop from 1956 and all the children contributed at different times. The plaintiff as the eldest child had the additional responsibility of caring for her younger brother while her parents worked in the fish and chip shop. She gave detailed evidence about the type of work she did in the fish and chip shop, from serving over the counter, cleaning, preparing the chips and helping her father with simple record keeping. The plaintiff worked in the shop throughout her childhood until she left home when she was married in 1975 at 22 years of age. Her contribution was not simply assisting on the weekends. She worked in the fish and chip shop every day, either before school, at lunchtime or after school. I accept that the plaintiff worked up to two to three hours per day at the shop and also contributed to the homekeeping, including looking after her younger brother.
The parties agree that their parents worked hard and that the family’s contribution to the fish and chip shop enabled the deceased to accumulate his wealth. The deceased ran a successful fish and chip shop with the assistance of his family and made sound financial decisions leading to purchasing of various property, including the properties he left under his will.
The plaintiff submits that she had a special claim which entitled her to a greater share under the will. There is no requirement under the Act that the plaintiff demonstrate a special need.
I consider the plaintiff’s contribution to the fish and chip shop and home was significant towards the family’s financial success. The fish and chip shop was leased in 1976 not long after the plaintiff was married. I consider the plaintiff contributed to the fish and chip shop effectively for the entire time the family built up the business and benefitted from the financial gain from the business.
I accept that all three children contributed to the fish and chip shop. The defendant suggested that the plaintiff exaggerated her contribution and the nature of the labour she contributed. As noted, I accept the plaintiff’s contribution was significant and that the detail of the work the plaintiff did, suggests it was physically demanding and that for a child, her hours of contribution were significant. I accept given the hours she worked that it must have had some impact on her studies. Not only did she work in the fish and chip shop but she along with her sister were primarily responsible for the home duties when her parents were in the shop.
The estate is a sufficiently large estate, valued at approximately $4,057,000. This in itself does not mean the Court should be unduly generous. The basic principles are the same. As Young J said in Anneson and Phillips:[47]
With a large estate … there is great temptation on a Court to be over generous with other people’s money. This is especially so when the Court can see the plaintiffs have been very hardly done by at the hand of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia, there is a 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 the moral duty to those whom in the community’s eyes, she should have made proper provision for, but anyone can legally complain about another person’s will. Even then, the Court has no power to rewrite the will, but can only adjust things, and substitution to the testatrix, in such a way as to 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 on making adequate provision to the plaintiffs, but where there is a large estate, competition between claimant and claimant, the claimant and beneficiary under the will is much reduced to eliminate it. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiff. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealth testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland …
[47]Nos 2900/85, 1125/85, 3413/86, 4 March 1998, unreported BC880243.
The plaintiff and her husband, in my view, have lived a relatively simple life and have worked to reach the modest financial position they are in now and were in at the date of the deceased’s death. They are not independently wealthy. They have not lived an extravagant lifestyle and on the evidence will not do so in the future.
In reality, once the plaintiff stops working their standard of living will decrease slightly.
I consider the plaintiff has demonstrated a financial need. In determining what is adequate provision for the plaintiff’s proper maintenance and support the Court is entitled to allow for contingencies which are no more than mere possibilities. At the time of the deceased’s death, the plaintiff was on a low income and only worked part‑time. Her assets were modest. I consider that adequate provision in this case for the proper maintenance and provision of the plaintiff includes taking into account present and future needs, including the need to guard against unforeseen contingencies. The plaintiff is 60 years of age. She is employed on a part-time basis as a cleaner. Any number of unforeseen contingencies could interfere with her ability to work to 65 years of age. Her husband has had serious health issues. Beyond 65 years of age, the plaintiff will depend on a stream of income from her assets. Even with the $520,000 that the plaintiff will inherit under the will, I consider she will just be able to maintain her current stream of income assuming there are no major unforeseen events such as illness, needs of her own children or needs of her ageing husband. In addition, there is always some uncertainty in relation to any income stream that the plaintiff will have access to from her superannuation or savings. As Forrest J said in Berkelmans v Bulach:[48]
As the events over the past 18 months and the “GFC” have demonstrated, there is nothing certain in relation to returns from superannuation investments, or, for that matter, any investment.
[48][2009] VSC 472, [58].
To suggest that the plaintiff has no financial needs because she says she can meet her debts and owns her home is to my mind a very narrow view of the concept of need. As Kaye J said in Unger v Sanchez:[49]
Mr Dickenson is correct in pointing out that the plaintiff is not in a position of financial need. However, as the authorities make it plain, it is not necessary for a plaintiff to be indigent, or in difficult financial circumstances, to qualify for provision under Part IV of the Act. Indeed, such a proposition would not give appropriate weight to the adjectives “adequate” and “proper” in the formulation of the duty of the testator. (Footnotes omitted).[50]
[49][2009] VSC 541.
[50]Ibid at [99].
What is adequate provision?
Section 91 of the Act confers wide power to make such order as is thought fit in all the circumstances of the case. In McKenzie v Topp,[51] Nettle J said:
It is plain, however, that the discretion is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the testatrix’s freedom of testation, but rather carefully and conservatively according to current community perceptions that provision which would be made by a wise and just testatrix. (Citations omitted).
[51][2004] VSC 90,[63].
Section 94(4)(e) to (o) set out a number of factors, which the Court must take into account in determining whether the testator had a responsibility to make provision for the plaintiffs, whether in fact the testator had discharged that responsibility and, if not, the amount which should be ordered by the Court in favour of the plaintiff. Section 91(4)(p) also requires the Court to take into account “any other matter the Court considers relevant”.
The starting point for resolving the question of the amount of provision to be ordered in favour of the plaintiff is the size and nature of the deceased’s estate.
The deceased died leaving a sizeable estate. I have concluded that the deceased had a moral obligation to make proper provision for his daughter and he failed to do so. As the Court recognised in Blair v Blair[52], it is impossible to set out an arithmetical basis to the calculation of this figure. The primary consideration as I have endeavoured to demonstrate, is that the plaintiff has the means to maintain her current lifestyle moving into her advancing years and ensure that there is a sufficient nest egg to meet the unforeseen contingencies in life. In closing submissions, counsel for the plaintiff submitted that the plaintiff should be given further provision in the sum of $1 million to $1.5 million plus the Thomas Street property which is valued at $400,000.
[52][2002] VSC 125
If no further provision is made for the plaintiff she will inherit effectively $520,000 plus rental income from the Thomas Street property from the date of the deceased’s death to today which is estimated at approximately $22,000.
I consider that the plaintiff should receive a further $350,000. This will enable her to maintain her current lifestyle as she gets older and ensure that there is sufficient money available to meet the unforeseen contingencies in life.
Subject to hearing from the parties on costs I consider that an appropriate costs order is that all legal costs be borne by the estate.
I do not think it is necessary, at least at the present time, to determine the source of such legacy as I assume the executor will make the appropriate distribution. I will hear the parties as to the exact form of orders to be made which reflect my reasons.
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