Kolak, Miro v Morrell, Robert Thomas
[2009] VCC 1171
•12 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES LIST – APPLICATIONS DIVISION
Case No. CI-08-04165
| MIRO KOLAK | Plaintiff |
| v | |
| ROBERT THOMAS MORRELL | Defendant |
| (as Executor of the Estate of WILLIAM HERBERT MORRELL, deceased) |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 16 September 2009 |
| DATE OF JUDGMENT: | 12 October 2009 |
| CASE MAY BE CITED AS: | Kolak, Miro v Morrell, Robert Thomas |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1171 |
REASONS FOR JUDGMENT
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Catchwords: Part IV of the Administration and Probate Act 1958 – provision out of the Estate of the deceased to companion – whether the deceased had responsibility to provide proper maintenance and support – relevance of various factors referred to in s.91(4)(e)-(p) of Administration and Probate Act – alternatively provision from deceased’s Estate by reason of constructive trust.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D S Barber | Cinque Oakley Senior |
| For the Defendant | Mr A J Robinson | Baird and McGregor |
| HIS HONOUR: |
Preliminary
1 By Originating Motion the plaintiff seeks provision out of the Estate of the late William Herbert Morrell (“the deceased”) who died on 10 June 2008. Probate of the Will of the deceased was granted to the defendant, his Executor, on 9 July 2008.
2 The plaintiff contends that the deceased had a responsibility to make adequate provision for his proper maintenance and support, but which was not made by the deceased’s Will. The plaintiff seeks an order that, pursuant to the provisions of s.91 of the Administration and Probate Act 1958 (“the Act”), the Court order there be provision from the Estate of the deceased to him.
3 Alternatively, the plaintiff alleges the deceased held the property owned by him at 404 Dawson Street South, Ballarat, being the land contained in Certificate of Title Volume 01722 Folio 306 (“the property”) on trust for the plaintiff pursuant to a constructive trust.
4 An affidavit of the plaintiff sworn 21 November 2008 was tendered into evidence.[1] An original Statement of the deceased made 19 August 1999 (“the Statement”) was further tendered into evidence.[2] A poem (“the Poem”) entitled “Oliver Goldsmith from the Deserted Village” with a dedication by the deceased to the plaintiff was also tendered into evidence.[3] The plaintiff attended and was cross-examined.
[1] Exhibit C
[2] Exhibit A
[3] Exhibit B
5 On behalf of the defendant, the following affidavit material was tendered into evidence:
•
Affidavits of the defendant sworn 18 February 2009 and 26 August 2009;[4]
•
Statement of receipts and expenditure sworn by the defendant on 26 August 2009;[5]
•
Affidavits of Margaret Lorraine Tung sworn 5 March 2009 and 25 August 2009;[6]
•
Affidavits of Patrick van Raaphorst sworn 18 February 2009 and 25 August 2009;[7]
•
Affidavits of Melinda Churchill sworn 19 February 2009 and 27 August 2009.[8]
[4] Exhibit 1
[5] Exhibit 2
[6] Exhibit 3
[7] Exhibit 4
[8] Exhibit 5
6 The defendant, Mrs Tung and Mr van Raaphorst, gave evidence and were cross-examined.
Background Circumstances
7 The deceased was a retired schoolteacher, and lived at the property which he had inherited from his mother. He died on 10 June 2008, his body being discovered by police when alerted by Mr van Raaphorst, a neighbour, who had not seen the deceased over a number of days and was concerned as to his welfare. By his Will made 19 June 1989, the deceased appointed the defendant, his second cousin, as Executor of the Will, which provided all of his Estate both real and personal to his Executor, to pay all just debts and expenses, and to distribute the proceeds of the Estate amongst the Executor’s children, John Robert Morrell, Kaye Louise Morrell and Ann Meredith Morrell in equal shares.
8 The plaintiff gave evidence that he migrated to Australia in 1970. He has been married twice. His wife and son from his first marriage live in New York, United States. His second wife lives in Australia, and, with his second wife, he had nine children. Although not clear from the evidence, I formed the view that the plaintiff is not in regular communication with many members of his family, although he regularly sees a number of his children from his second marriage, particularly Frederick and Alexander. Various of his other children live in Melbourne. According to the plaintiff, his son Frederick owns and operates a factory producing some robotic equipment. Another son, Alexander, owns an investment property in Romsey, Victoria. Other of his children have regular employment, although he was vague as to the real nature and extent of the financial position of his various children. When it was suggested to the plaintiff in cross-examination that he ought live with one or other of his various children, he stated that it was not practical for him to live in Melbourne. There were many reasons for this, he said, including that he was accustomed to living in the Ballarat area. He further stated that he wished to remain living at the property.
9 The plaintiff and the deceased met in somewhat curious circumstances. In 1983, the plaintiff claimed that he was homeless and was befriended by the deceased in a park in Ballarat. A friendly relationship was formed, and the deceased invited the plaintiff to live at the property. He has remained living there over the last twenty five years. At no time has he made any contribution by way of rental or board to the deceased.
10 He claims that he has met various expenses, including payment for electricity, water and council rates, and in total contributed many thousands of dollars towards those expenses. He was challenged in cross-examination and was unable to produce any receipts or any other form of written confirmation of such payment. He said that he made payments directly to the deceased by cash.
11 The deceased permitted the plaintiff to occupy a part of his backyard where the plaintiff has lived in a tent over a trailer. The deceased permitted the plaintiff to store many of his personal possessions in and around the property. The gentlemen shared some facilities, including the bathroom.
12 The deceased had various health problems, including that he was diagnosed with schizophrenia, which required admission from time to time for treatment, including to psychiatric hospitals. The deceased further was treated for a cancerous growth on his arm which required inpatient treatment and surgery. The deceased took medication regularly for schizophrenia.
13 The relationship between the gentlemen, according to the plaintiff, was based upon friendship and a shared interest in music and literature. According to the evidence of the plaintiff, he was “a close personal friend and supporter” of the deceased. Further, according to him, he became the deceased’s principal carer, particularly from approximately 2000.
14 On 19 August 1999, the plaintiff claims the deceased wrote and signed the Statement as “he expressed real concern for my future and wellbeing”. The authenticity of this Statement was not challenged in cross-examination. The Statement purports to permit the plaintiff to continue living at the property for the remainder of his life.
15 Further, in October 2000, the plaintiff alleged the deceased dedicated the Poem to him.[9] The dedication reads: “To my dear friend Miro from Bill Morrell … 8 October 2000”. The Poem was apparently part of a recitation made by the deceased at a theatre presentation in Ballarat, which the deceased regularly attended and read poetry and short stories.
[9] Exhibit B
16 The plaintiff claims that because of the companionship he provided, the deceased spent less time than he otherwise would have done in institutions. He claimed that he and the deceased would go out occasionally to social outings, including to the movies, and restaurants. The plaintiff further claims that he did maintenance at the property, including installing plumbing in the house, and a heater in the bathroom.
17 The plaintiff has continued to live at the property in the same manner as before, since the deceased’s death. He is in receipt of an aged pension of $560 approximately per fortnight and claims to have no other assets and few friends. He is currently seventy-five years of age and in reasonable health.
18 Mr Morrell, the Executor, gave evidence both by affidavit and viva voce. He said he visited the property regularly and the whole of the property was in a dishevelled and poor condition. He said that there had been no maintenance carried out to the property for a very considerable period. The bathroom particularly was in a virtually unusable condition and had been so for a long time. He and his son took photographs of the property after the deceased’s death which showed the state of the premises.[10] These photographs, to my view, indicate a dirty, dishevelled and cluttered house where the photographs were taken. After the death of the deceased, Mr Morrell had removed two 12- cubic metre skips of rubbish from the property. He claims it will be necessary to remove another three to four skips of rubbish which remain. As at the date of death, the deceased had credit card debts of over $26,000 and had arranged to pay rates for the 2002-2004 years by instalment.[11] He noted that he saw the deceased regularly and that he had poor personal hygiene.
[10] Exhibit RTMA – RTMH to affidavit of Robert Thomas Morrell sworn 26 August 2009
[11] Exhibit RTM5 to the affidavit of Robert Thomas Morrell sworn 26 August 2009
19 Mr Patrick van Raaphorst, a neighbour of the deceased, provided evidence by affidavit and viva voce. He lived near the deceased. He also noted his poor personal hygiene. He visited the property regularly and said that it was not well maintained. The deceased regularly asked him for money. On 7 June 2008, three days before his death, he went to the property as he had not seen the deceased over a number of days and tried to contact him. He tried again on the following day and telephoned the police because of his concern. He was shocked to find that the deceased had been dead in the house over a number of days before his death was discovered.
20 Ms Melinda Churchill provided an affidavit, but did not attend to be cross- examined. She lived three doors from the deceased in Dawson Street. She saw him regularly over the years and would wash his clothes and mow the nature strip at the front of his property. When she went to the property she thought there was little or no maintenance carried out. She said the deceased regularly asked her for money and that she did not see him in company with the plaintiff. She moved away from the area in 2002, and her contact thereafter was less. However, she returned each Thursday to see the deceased. She described the house as “a pigsty with rubbish everywhere”. Shortly before his death she went to the property when the deceased was in hospital, with Mrs Tung, another witness and neighbour, and turned off all of the lights which had been left on. From the mid-1990s until his death, she supplied packaged frozen meals to the deceased each week.
21 Mrs Margaret Tung swore two affidavits and attended to be cross-examined. She lived over the road to the deceased for forty five years. She saw him regularly. She did not see the plaintiff and the deceased spending very much time together. She described the property as a mess with a lot of rubbish. She attended with Ms Churchill to turn off the lights shortly before his death. She said that there was no gardening done to the property and when she was there, there was rubbish and papers strewn throughout the house. There were various items located in the front yard, including gas bottles. The only maintenance she recalled carried out to the property was the painting of the front fence by the deceased. On the inside she said there were papers, magazines and newspapers strewn throughout. She also stated that the deceased had poor personal hygiene. She loaned money to the deceased regularly.
Conclusions from the Evidence
22 Considering the evidence both in affidavit form, and cross examination, I formed the following conclusions:
23 I accept that the plaintiff was a friend, and to some extent a companion of the deceased over the course of the twenty five years during which the gentlemen lived in the property. It is accepted that the plaintiff paid no rent, nor board, over that period.
24 The plaintiff claims that he was more than a friend to the extent of being a carer and supporter of the deceased. This care and support, according the plaintiff, consisted of:
• Assisting in the maintenance at the property. • Paying or contributing to various of the service fees, including gas, electricity, telephone, council and water rates. • Helping in the provision of meals and providing food to the deceased’s larder. • Assisting the plaintiff with the medication necessary to control his schizophrenic illness. • Visiting the deceased at the Lakeside Psychiatric Hospital. • Assisting when the deceased was affected by his schizophrenic illness. • Providing companionship and general care. 25 However, the claims by the plaintiff lack any specific detail as to the type of care actually provided. When challenged in cross-examination about the areas of assistance he claimed to have given, he responded that the deceased regularly did not wish him to provide assistance, help or care, particularly as to matters of personal hygiene, dress, and assisting in tidying and maintaining the household.
26 Further, the claims of the plaintiff stand in stark contrast to the evidence of the various other witnesses. I accept the evidence of Mr Morrell, Mr van Raaphorst, Ms Churchill and Mrs Tung that the property was dirty, dishevelled and cluttered with a range of material. After the deceased’s death there was a very large amount of rubbish to be removed. I further accept that the deceased, particularly in later years, did not pay any proper attention to personal hygiene and the washing of his clothes was done by Ms Churchill until she left the area in 2002. Further, she provided considerable assistance to the deceased by bringing packaged dinners each week.
27 It is further apparent that the deceased seemed to be regularly short of money. He asked his neighbours for small amounts of money on a regular basis. It is clear that he was struggling to pay bills, including council rates, and to reduce and eliminate credit card debt.
28 If the plaintiff had been the true carer that he claims, it is difficult to understand how he could have allowed the deceased to live in such circumstances, given particularly the schizophrenic illness from which he was suffering.
29 The plaintiff further claims that he contributed many thousands of dollars towards the upkeep of the property, including payment of service fees. He was unable to produce any receipts, bank documents or other evidence of any such payments. His allegations in this regard are general, not substantiated with any details of when and in what manner the payments were made, and I am not satisfied that the plaintiff made the contributions he claims.
30 Of particularly telling significance is that the discovery of the death of the deceased only came about after investigation by the police. According to Mr van Raaphorst, he became concerned that he had not seen the deceased, attended the property on three occasions, and the deceased’s body was discovered sometime thereafter. If the plaintiff was the caring person he claims, it is difficult to believe the deceased could have died in such circumstances.
31 Likewise, the claims of the plaintiff to have undertaken maintenance work at the property are vague and non-specific. He talks of some plumbing and heating works undertaken, but there is no detail as to the actual works carried out, nor the cost involved.
32 As a result, I reject the claims of the plaintiff that he was a carer of the deceased. I am not satisfied that he provided any significant funds towards the running of the property and he has admitted that he made no payments for rent or board. I am not satisfied that there was anything other than a relationship of friendship and that largely the benefit of the arrangement was much more significant to the plaintiff than to the deceased.
33 I am further satisfied that the plaintiff has family in Australia, some of whom have resources of significance.
34 The Statement is not claimed to be a testamentary document. Rather it is said to be evidence of the responsibility the deceased felt for the plaintiff to make provision for his accommodation during the course of his life. Further, the Poem is somewhat quizzical as to its meaning. The dedication expresses friendship, but I read no more into it than a provision of a poem by the deceased to the plaintiff with an expression of friendship.
Provision to the Plaintiff out of the Estate Pursuant to s.91 of the Act
35 Section 91(1) of the Act provides:
“…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 responsibility to make provision.”
36 Section 91(3) provides:
“The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by … his will …does not make adequate provision for the proper maintenance and support of the person.”
37 Section 91(4) requires the Court to have regard to the following matters:
“…
(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, any other applicant and the beneficiaries of the estate; (g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate 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 applicant 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, where the Court considers it relevant, the extent to which and the basis upon which the deceased had 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.”
38 The starting point, in my view, is an acknowledgment of the importance of the principle of freedom of testation, and the recognition of the Court’s limited power to interfere with testamentary provisions. In Grey v Harrison,[12] Callaway JA noted the significance of the principle and reflected that the relevant provisions of the Act ought be construed bearing that principle in mind.
[12] [1997] 2 VR 359, at 366
39 In the present case, the deceased made a Will in 1989 disposing of the balance of his Estate equally amongst the children of the Executor, his second cousin. He did not see fit thereafter to change in any way the terms of his Will before his death.
40 The next matter to consider is the effect of s.91 and the criteria that section requires the Court to take into account. Before a court may intercede into the Will of a deceased, the section requires:
(a) at the date of his death the deceased had a responsibility to make provision for the plaintiff’s proper maintenance and support; and (b) the Will did not make adequate provision in that regard. 41 There is no issue the Will made no provision for the plaintiff. An important matter to consider is the nature and extent of the responsibility which it is said the deceased had towards the plaintiff. That word “responsibility” in sub-s.(1) speaks as to a moral duty or obligation of the testator to make provision for the proper maintenance and support of the plaintiff.[13] Further, that responsibility is that which a wise and just testator would have exercised to fulfil his moral obligation.[14]
[13] See Collicoat v McMillan [1999] 3 VR 803, at 815-824
[14] Blair v Blair [2004] VSCA 149, at para 13
42 Prior to the amendment of the Act made by the Wills Act 1997, the right of persons to challenge for testator’s family maintenance was limited to widows, widowers and children of the deceased. As from 20 July 1998, those amendments expanded the class of persons to the present provision. The Attorney-General, in her Second Reading Speech on 9 October 1997, noted:
“These provisions are quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased’s Estate from making a claim. The need for amendments to the Act to enable a wider category of persons to make testator’s family maintenance applications has been recognised for a while…This Bill introduces amendments to the Act to enable a wider group of people to apply to the court for testator’s family maintenance. The Bill empowers the court to make an order for provisions out of the Estate of a deceased person for the maintenance and support of a person for whom the deceased had responsibility to make provision. The Bill does not include a list of eligible applicants for testator’s family maintenance, instead leaving it to the court to determine on a case by case basis whether the provisions should be made for a particular applicant, which is a more equitable method of dealing with testator’s family maintenance applications. To ensure that only genuine applications are made, the Bill allows the court to order costs against an applicant if the court is satisfied that the application was made frivolously, vexatiously or with no reasonable prospect of success.”
43 In considering the categories of persons entitled to make claims, Harper J in Schmidt v Watkins,[15] said the following:
“It is equally clear that a duty to provide in one’s Will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor and creditor. Even one founded upon or which results in acts of kindness or consideration that went well beyond the ordinary, might not do so. Generally speaking, however, a ‘domestic [relationship] where there is a mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner’, would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility (although, of course, in the particular case that responsibility might not arise or might already have been discharged).
In the context of this case…it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result, the recipients had a responsibility to make adequate provision in their Wills for the maintenance and support of their benefactors.
To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it, that those who have a duty not so much to reward but rather to provide maintenance and support, do so by appropriate testamentary disposition. And the question: ‘should I reward my benefactor?’ is very different from the question: ‘do I have a duty to X to make provision for his or her proper maintenance and support?’ Different questions demand different approaches as one seeks to formulate the correct (or, rather, a proper) answer … .”
[15] [2002] VSCA 273, at paras 22-25
44 Bearing in mind the moral duty or obligation which a wise and just testator ought to exercise, it is necessary to have regard to the various criteria set forth in s.91, and their application to the facts of the present proceeding.
45 The decision of Warren J (as she then was) in Lee v Hearn[16] has certain similarities to the present proceeding. In that case, the deceased left a substantial estate. The plaintiff had, for a period of twelve years prior to the deceased’s death, performed caretaking and other related functions in respect of a property owned by the deceased in Queensland and where she, intermittently, spent the winter months. There was evidence that when the deceased travelled to Queensland, she was attended to by the plaintiff, including helping her with shopping, cooking and driving her wherever she wished to go by car. There was further evidence that from time to time the deceased drank, or became affected by drink, and was assisted by the plaintiff. Further, the deceased had indicated, both by word and letter, of her intention to allow the plaintiff to remain living at the premises in Queensland, that she would support him, and not leave him without a roof over his head. These words were said, in the context of the moral duty of the testator, to be of no consequence and insufficient to establish any obligation or duty owed by the deceased to the plaintiff. This view was confirmed by the Court of Appeal.[17] The Court stated:
“Such statements were no more than reassurances to a friend that for the
present he need not worry about a roof over his head.”
[16] (2002) 7 VR 595
[17] Lee v Hearn [2005] VSCA 127, at para 33
46 Her Honour, having applied the facts of the case to the legislative criteria required by s.91(4)(e)-(p), concluded that the plaintiff had failed to make out any moral duty allegedly owed by the deceased to him.
47 I turn now to examine the various criteria to which the Court must have regard and as set forth in s.91(4)(e)-(p).
Any family or other relationship between the deceased and the plaintiff, including the nature and length of that relationship (sub-s.(e))
48 There was no familial relationship between the deceased and the plaintiff. The gentlemen cohabitated for approximately twenty five years. As stated, I find that the nature of the relationship between the parties was that of friendship or companionship. It is said, on behalf of the plaintiff, that when considering the nature of the relationship, the present case has distinct similarities to Ye v Fung.[18] However, in that case, while the deceased and the applicant lived together for a period in the order of ten years, and although there was no sexual relationship, the relationship was described as a close personal relationship in the nature of an aunt and nephew. During the course of the relationship, the elderly deceased provided a significant amount of money towards the applicant’s tuition fees. I do not see the nature of the relationship in the present case as akin to that in Ye. Further, the Estate in that case was far more substantial than in the present and, by reason of s.91(4)(g), that is a matter to be taken into account.
[18] [2006] NSWSC 243, [2006] NSWSC 635
Any obligations or responsibilities of the deceased to the plaintiff and the beneficiaries of the Estate (sub-s.(f))
49 There was little, if any, evidence as to the nature of the relationship between the deceased, and the beneficiaries, save that they are the children of the Executor, the deceased’s second cousin. There was no evidence of any obligation, aside from the somewhat vague familial tie between the deceased and the beneficiaries. In these circumstances, I am unable to conclude there was any obligation or responsibility by the deceased towards them.
50 It is submitted on behalf of the plaintiff that the deceased had an obligation to him, given the reliance for accommodation. The plaintiff is in receipt of an aged pension in the sum of approximately $560 per fortnight. Apart from the provision of accommodation, and the services which that accommodation necessarily entailed, including payment of rates and the like, there was no evidence that the plaintiff was bestowed with any financial assistance which founded any obligation. The plaintiff seems to have lived independently, albeit at the same premises as the deceased. Based upon the fact that accommodation was provided is not sufficient, in my view, to establish a presumption of responsibility or obligation to the plaintiff. No doubt the plaintiff found the accommodation convenient, cheap and suitable to his lifestyle but that does not, in my view, establish any obligation pursuant to the Act. As discussed below, I am of the view that there are other possible alternatives for the plaintiff as to accommodation.
The size and nature of the estate and the liabilities thereof (sub-s.(g))
51 On any view the Estate is small. According to the Statement of receipts and expenditure,[19] the value of the property was assessed by a local estate agent to be $120,000 to $140,000, less the sum of $5,500 in selling fees. According to the Inventory of Assets and Liabilities[20] to the plaintiff’s affidavit sworn 21 November 2008, the property is estimated to be valued at $150,000. Whichever assessment is accepted, the property is clearly not of significant value. Further, I accept that including the legal costs and disbursements of the Executor in defending the claim, estimated to be $17,000 as at August 2009, the liabilities of the Estate totalled approximately $57,000. The balance therefore available for distribution is extremely modest.
[19] Exhibit 2
[20] Exhibit MK2
The financial resources (including earning capacity) and the financial needs of the applicant, and of the beneficiaries of the Estate as at the time of the hearing and for the foreseeable future (sub-s.(h))
52 There is no evidence as to the financial resources and needs of the beneficiaries.
53 I am satisfied the plaintiff has no assets of value, and his only income is the aged pension. The plaintiff stated that his needs were modest and that he lived frugally from week to week. He said that his health was reasonably good but that he suffered from anxiety and depression of recent times.
54 It is put on behalf of the plaintiff that a wise and just testator would have recognised his needs and assessed himself as morally bound to make provision from the Estate. I do not accept this submission. While undoubtedly the fact that the plaintiff has little in the way of assets and only a modest income is a matter to be recognised and taken into account, it is not, in my view, determinative of any obligation seen from the prospective of the wise and just testator. To the contrary, in my view, the plaintiff had a distinct benefit of free board over many years without any significant reciprocative contribution.
Any physical, mental or intellectual disability of the plaintiff or any beneficiary of the Estate (sub-s.(i))
55 There is no evidence of any disability affecting any beneficiary. The plaintiff is said to be in good health, save from some anxiety and depression. This matter does not, in my view, weigh heavily in determining any obligation or responsibility of the deceased.
The age of the applicant (sub-s.(j))
56 The plaintiff is seventy-five years of age.
Any contribution (not for adequate consideration) of the applicant to building up the Estate or to the welfare of the deceased or the family of the deceased (sub-s.(k))
57 I accept that from time to time the plaintiff provided companionship to the deceased. However, I reject that the financial contribution of the plaintiff to the deceased, or to his Estate, was anything more than minimal.
58 It is put on behalf of the plaintiff that accepting this fact, there was a greater degree of dependency of the plaintiff upon the deceased. However, I am not satisfied that there was such a degree of dependency. The evidence of the plaintiff was not that he could not live in any other place, particularly with his children, but rather that there were some difficulties in that regard, and further that he had become accustomed to living at the property at Ballarat.
Any benefits previously given by the deceased to the plaintiff or to any beneficiary (sub-s.(l))
59 There is no evidence of any benefit being provided by the deceased to the beneficiaries. Aside from the provision of accommodation, there is no evidence that there was any further or other benefit provided by the deceased to the plaintiff.
Whether the plaintiff was being maintained by the deceased before his death, either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility (sub-s.(m))
60 Aside from the provision of accommodation, the plaintiff was not being maintained by the deceased.
The liability of any other person to maintain the applicant (sub-s.(n))
61 There is no evidence of any strict legal liability upon the children of the plaintiff to maintain him. As stated, it would seem that he has no strong relationship with at least the majority of them. It appears he sees and/or speaks to a number of his children from time to time. The plaintiff submits that the sub- section is not concerned with any moral duty, but rather a formal liability to maintain. In McKenzie v Topp,[21] Nettle J (as he then was), in considering the sub-section, referred to “responsibility” on the part of the applicant’s children to maintain him. It is undoubtedly the case that the deceased’s children, either acting individually or combined, could provide for their father. It is difficult to know the nature and extent of any such responsibility (if it be such) without a more significant understanding of the nature of the relationship between the plaintiff and his children over the years. I did gain the impression from the plaintiff’s evidence; however, particularly in relation to a son who owned or ran a robotics business, that there were financial resources available through his children should he wish to explore those resources.
[21] [2004] VSC 90, at para 38
The character and conduct of the plaintiff (sub-s.(o))
62 I have referred to the nature of the relationship between the plaintiff and the deceased, and the conduct of each of them during the course of that relationship. As stated, I accept that the plaintiff did provide some companionship, particularly in respect of mutual interests which the parties held. While it is not appropriate to attempt to grade or measure on the one hand the nature of the companionship provided as against, on the other hand, the benefit by way of accommodation, each are matters to be taken into account. In my view, the plaintiff received a very significant benefit from the deceased by reason of the provision of that accommodation.
Any other matter the court considers relevant (sub-s.(p))
63 There are no other matters from the evidence to be taken into account.
Conclusions
64 Given the nature of the relationship between the parties, and bearing in mind the various matters which the court is directed to take into account pursuant to s.91, I am of the view that a wise and just testator in the position of the deceased would not have considered it his moral duty to make provision for the plaintiff out of his Estate.
65 The actions of the plaintiff in providing the companionship he did, at best, could be regarded as acts of kindness or consideration, as were referred to by Harper J in Schmidt v Watkins.[22] In the same context, the plaintiff received benefit from the deceased in the provision of accommodation. The fact of the provision of that accommodation does not, in my view, provide a basis upon which it could be said a significant degree of dependency by the plaintiff upon the deceased was established.
[22] (supra), at paragraphs 22-25
66 I have given consideration to the Statement. However, whatever was the deceased’s intent by it, he did not see fit to change his testamentary disposition to make any provision for the plaintiff’s future. The Statement is akin to those referred to in Lee v Hearn.[23] In balancing on the one hand, the intent conveyed by the Statement, and on the other hand, the important principle of freedom of testation, I am of the view that the Statement itself does not provide an adequate basis for a distribution to the plaintiff from the Estate. It does not provide a basis upon which it could be said that the deceased had a responsibility to make provision for the plaintiff.
[23] (supra)
The Deceased Held the Property Pursuant to a Constructive Trust for the
Benefit of the Plaintiff67 The plaintiff submits that the Court ought to declare that the Executor holds the property on constructive trust for the plaintiff for his life, and thereafter subject to the terms of the deceased’s Will.
68 The property was acquired by the deceased from his late mother’s estate. The property is the only asset of the Estate.
69 My findings as to the facts of this case include that the plaintiff made little, if any, contribution to the deceased during the course of their twenty five year relationship. On the basis of financial contribution alone, I am of the view there is no basis upon which it could be said the property is held on constructive trust for the benefit of the plaintiff.
70 Actions brought on the basis of a constructive trust survive death and may be issued against an Estate.[24]
[24] Hohol v Hohol [1981] VR 221; Baumgartner v Baumgartner (1985) 2 NSWLR 406
71 In Muschinski v Dodds,[25] Deane J said that equitable relief by way of constructive trust would only be available “if applicable principles of the law of equity” should require that the person, in whom the ownership of the property is vested, should hold it to the use or for the benefit of another. His Honour considered that where a relationship should fail, equity would intervene to entitle each party to such a relationship in proportion of the repayment of capital contributions made by them to a particular venture or property in the course of that relationship. His Honour observed that any such remedy by way of constructive trust “operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct”.[26] The equitable remedy of a constructive trust is available to adjust the legal interests in property of a party in a relationship where, during and on the basis of the continuation of the relationship, one party has made a contribution to the acquisition, maintenance or improvement of the property, such that it would be unconscionable for the other party, on the failure of the relationship to insist strictly on his or her legal rights without an appropriate adjustment commensurate with the contribution made by the former party to the property.[27]
[25] (1985) 160 CLR 583, at 615-616
[26] at 620
[27] See the analysis of Kaye J in Cressy v Johnson & Ors [2009] VSC 52, at para 197
72 The contribution of a party upon which the constructive trust is based, must have been directed to the acquisition and maintenance of the assets in respect of which the plaintiff claims an interest under that trust.
73 In the present case, I have found that there was little, if any, contribution by the plaintiff to the maintenance of the property. Under the principles referred to, there is no basis upon which it could be said the plaintiff contributed to the acquisition, maintenance or improvement of the property. The extent of the improvement, where carried out, was minor only, including some modest plumbing work and the installation of a heater. The contribution by the plaintiff was far outweighed by the benefit that he obtained of living rent-free in the property.
74 However, the plaintiff submits that by reason of the Statement, the plaintiff relied upon what is alleged to be a promise by the deceased that he would be able to remain in the property after the deceased’s demise. It is said that there was reliance on this promise, firstly, by the plaintiff paying household bills and undertaking maintenance, and in addition, the plaintiff “took no step to secure alternative accommodation at a time when he was ten years younger than he is now and presumably more vigorous”. As stated, I am not satisfied there was any significant contribution by way either of payment of bills, or maintenance undertaken at the property. Absent that matter, in my view, there was little if anything by way of reliance placed by the plaintiff upon the Statement. At any time the plaintiff could have left the accommodation and sought alternative accommodation. He is also able to do that at the present time. There is no detriment, so far as I can perceive, to the plaintiff by way of his reliance upon the Statement. Again, to the contrary, the detriment seems the other way, that is, the plaintiff was able to remain living in the property rent-free.
75 In these circumstances, there is no basis upon which I am prepared to order the Executor holds the property on trust in any manner for the plaintiff.
76 Accordingly, both in respect of Part IV of the Administration & Probate Act 1958, and further, in respect of the alleged constructive trust, the plaintiff’s application fails.
77 I will hear from the parties as to costs, and appropriate orders.
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