Ligeti v Ligeti
[2016] VSC 448
•5 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 04566
In the matter of PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958
and
In the matter of THE ESTATE OF SANDOR GEORGE LIGETI
BETWEEN:
| JULIA CLARA LIGETI | Plaintiff |
| v | |
| MARIA LIGETI (who is sued as the Executrix and Trustee of the Estate of Sandor George Ligeti, Deceased) | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2016 |
DATE OF JUDGMENT: | 5 August 2016 |
CASE MAY BE CITED AS: | Ligeti v Ligeti |
MEDIUM NEUTRAL CITATION: | [2016] VSC 448 |
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SUCCESSION LAW – Family provision – Testator’s family maintenance – Whether adequate provision made for the plaintiff’s proper maintenance and support by her deceased father – Plaintiff had acted as carer for her ill mother and brother over a number of years at father’s request, including contributing financially to their welfare – Plaintiff’s current financial situation comfortable – Plaintiff already the beneficiary of funds from her deceased father – Administration and Probate Act 1958 s 91 – Blair v Blair (2004) 10 VR 69; Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178 cited – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Phillips | Ligeti Partners |
| For the Defendant | Ms C Sparke QC | Aitken Partners Pty Ltd |
HIS HONOUR:
Introduction
The plaintiff, Julia Ligeti (‘Julie’) is the daughter of the deceased, Sandor George Ligeti (‘George’), who died on 28 December 2013. The defendant, Maria Ligeti (‘Maria’), George’s second wife, is the executrix and major beneficiary of his estate. By his last will made 12 May 2003 (‘the will’), George left 4,000 National Australia Bank Limited shares to Julie, and the balance of his estate to Maria.
Relying on Part IV of the Administration and Probate Act 1958 (‘the Act’), Julie argues that there was a responsibility on the part of her father to provide for her, and that insufficient provision was made for her in his will.
Maria is financially secure and makes no competing claim. However, she asserts that in the circumstances, any obligation owed by George to make provision for Julie has been satisfied by a gift made to Julie of approximately $300,000 in late 2003, and by the bequest of the 4,000 NAB shares.
Factual background
George was born in Hungary on 2 September 1923. Maria Eva Ligeti (‘Eva’) was born in Hungary on 13 July 1927. In December 1949 George and Eva married, and in 1950 they came to Australia as refugees. Initially, George worked for the railways, then later started a lawn‑mowing business. Eva performed piecework, packing cigars.
George and Eva had three children: Peter (born 2 February 1952) (‘Peter’); Tom (born 14 September 1953) (‘Tom’); and Julie (born 27 September 1961). From about 1952 onwards Eva was mainly engaged in home duties and was not in paid employment. On 17 September 1954 George and Eva purchased the property at 81 Chapel Road, Moorabbin, which became their family home (‘the family home’).
In about 1962 Eva suffered a psychological breakdown and was subsequently diagnosed as suffering schizophrenia. She continued to suffer from that illness for the rest of her life, and often required medical treatment, including prescription of medications, attendance with doctors and periods of hospitalisation.
In the early 1960s George started a printing business, initially conducted from the garage of the family home. In May 1973 a factory at Bibby Court, Moorabbin was purchased by Twin Press Pty Ltd, the company which operated the printing business. The business moved to that premises in the same year.
In 1972, while Peter was studying medicine at university, he suffered a psychological breakdown and was diagnosed with schizophrenia and depression. He was unable to return to his studies, and he became an invalid pensioner. In about 1972 his behaviour became at times aggressive and disruptive, and George purchased a unit in Mentone, so that Peter could move out of the family home and live there instead.
In about 1972 or 1973 Tom left home. At that time he was studying law. He successfully completed that degree and has since worked as a solicitor.
In August 1973 George purchased a property at 38 The Boulevard, Loch Sport (‘the Loch Sport property’). The plaintiff says, and I accept, that from about that time George spent an increasing amount of time away from the family home, staying in a caravan that he had purchased and then at the Loch Sport property, where he built a house. Eva Ligeti’s psychological condition fluctuated, but gradually deteriorated with time. From the mid‑1970s, when the plaintiff was in the later years of school, she ‘basically [became] [her] mother’s carer’ performing a major role with duties around the home, including shopping, preparation of meals and the washing of clothes. Eva was suffering serious psychological ill health during this period, due to psychosis associated with her schizophrenia. The plaintiff also did what she could to help Peter during this time. Her evidence was that Eva and Peter were, at times, ‘verbally aggressive and disturbed’, and that her life with them was a hard one.
A number of significant changes occurred in 1983. George left the family home entirely and moved to Loch Sport. Peter moved back to the family home from his Mentone unit. In February 1983 the family home was transferred to Peter, for reasons which are unclear. Eva began receiving a disability pension in the same year. The plaintiff continued to live in the family home, along with Eva and Peter, and fulfilled a carer role in respect of both with assistance from Tom. This was done at her father’s request. She continued to care for Eva and Peter until their respective deaths, and describes the discharge of that responsibility in the period from the mid-seventies until her mother’s death in 1998 in particular as ‘time-consuming, stressful and emotionally draining’.
In August 1984, while travelling in Hungary, George met Maria. Their relationship developed and in October 1985 Maria arrived in Australia with the intention of living here permanently. On 15 February 1986 George and Eva’s divorce became absolute. On 1 March 1986 George and Maria married. At that stage, George and Maria were living at the Loch Sport property.
No matrimonial property settlement occurred between George and Eva. Eva continued to live in the family home in Moorabbin, which by that stage had been transferred by George to Peter. From 1983 until her death in August 1998 Eva received a disability pension. For that period George paid an amount of $5,000 or so per annum to assist with Eva’s financial needs. Otherwise George retained the assets which had been accumulated during that marriage, including the printing business and the companies which operated it, the factory premises at Bibby Court, shares, the unit at Mentone and the property at Loch Sport. In about 1983 Tom took over responsibility for the financial management of Eva’s affairs. From that time both he and Julie contributed to Eva’s financial support. Julie made contributions to day‑to‑day expenses, including the running of the family home and the purchase of things such as clothes, toiletries, cigarettes and medications for her mother.
By the time George moved out of the family home in Moorabbin, Julie was 21 years of age. After George left the family home, he paid some of the household bills, while other bills were paid by other family members, including the plaintiff. While Julie was at university George would help her out on occasion with things like housekeeping money, fuel costs and books for university if she was short. The family company paid the airfares for Julie’s first trip overseas when she was 19 and for the flight home for her second trip some years later. Julie finished her law degree in 1985. Up to that time she had held various part-time jobs and summer jobs to help pay her own way. In 1986 she worked as an articled clerk in her brother Tom’s firm. In mid-1990 she began to work as a political advisor, and remained in that type of work for around a decade thereafter. She later commenced work with a law firm. Julie has been in paid employment at all times from early 1986 to the present.
At most times until 1990 Julie lived in the family home at Moorabbin. There were times when her mother Eva was hospitalised for lengthy periods because of her schizophrenia, and on some of those occasions Julie lived elsewhere for a time. However, her primary residence was the family home until Eva moved into special accommodation in 1990.
There were times when Julie sought financial assistance from George in relation to expenses for Eva and Peter, and he would assist to a degree. Julie explained that it was George’s expectation that her mother Eva and brother Peter live modestly, and that if George considered that he was being asked to fund an expense beyond basic items he might say no. George was not particularly flexible about those matters. He did not proffer financial difficulty as a reason for his decision not to fund an expense.
When she required hospitalisation, Eva was at times admitted to Heatherton Psychiatric Hospital. By 1990 Eva’s illness was such that the hospital would no longer admit her because, the family was advised, she needed full-time care. Tom and Julie arranged for Eva to be admitted to special accommodation at Alvin House, East Malvern.
In April 1991 the family home in Moorabbin was sold. Most of the proceeds of that sale were used by George to purchase a unit for Peter at 4/28 Royal Avenue, Glenhuntly (‘the Glenhuntly unit’). With the balance of the proceeds from the sale of the family home George purchased 3,500 Westpac shares for Peter. It seems Peter later sold the shares and used the proceeds of that sale. Because Eva had been placed in full-time care, and because the Moorabbin house was sold, Julie moved into private rental accommodation in North Melbourne. In 1994 she purchased a small flat in Elwood.
In November 1987 George purchased a property at 11 Koornalla Crescent, Mount Eliza, which became the matrimonial home of he and Maria (‘the Mount Eliza property’). In September 1991 George sold the Loch Sport property and purchased 24,000 NAB shares. In mid‑1992 George sold the printing business and invested the proceeds of that sale in shares. In January 1993 George purchased 20,000 CBA shares. In August 1993 the mortgage on the Mount Eliza property was discharged.
In 1996 Eva required a change of accommodation and care, and was resistant to both. In February 1997 Julie was appointed Eva’s guardian, in accordance with the Guardianship and Administration Board Act 1986. Later that year Eva was transferred from Alvin House to Mooraleigh in Bentleigh East, a residential facility for older people with a psychiatric illness. In the same year George required a quadruple heart bypass and suffered some ill health as a consequence.
In August 1998 Eva died. She left no estate of significance. Tom had continued to administer Eva’s financial affairs through to the date of her death.
In about mid‑2002 Peter was diagnosed with a secondary melanoma. His health deteriorated quickly. He remained living in the Glenhuntly unit receiving outpatient care until shortly prior to his death, when he was admitted to palliative care in a hospice. Peter died on 18 February 2003.
In June 2003 George transferred the title of the Mount Eliza home to himself and Maria as joint tenants.
In December 2003 the Glenhuntly unit was sold for approximately $300,000. George was the sole beneficiary of Peter’s estate. He made a gift of the sum of just under $300,000 to Julie.
In 2006 George purchased gold bullion for himself and Maria jointly. In July 2007 he sold the factory premises in Moorabbin and in the same month purchased Rio Tinto shares.
On 28 December 2013 George died. His last will was made on 12 May 2003, and probate of that will was granted to Maria as executrix on 8 May 2014.
Estate value
As at the date of George’s death, he held assets valued at $3,113,347.20. As at 9 May 2016 the value of the estate was as follows:
Listed shares $2,609,681.74
Shares in private companies $252,431.70
Dividends received (since date of death) $399,807.89
Expected tax refund $6,400.93___________
Total $3,268,322.26
Less:
Estate expenditure $237,547.59
Current anticipated liabilities $551,661.00___________
Net Total $2,479,113.67
___________
The 4,000 NAB shares, which were valued at approximately $138,800 at the date of George’s death, have been transferred to Julie, and are not in the summary position as at 11 May 2016. The costs of the estate of this proceeding are included in the above summary.
Julie’s financial position
Julie’s current wealth is summarised, consistent with her affidavit of 16 May 2016, as follows:
Home at 16 Edward Street, Seddon $ 900,000.00
Various bank accounts $ 264,973.00Shares (including shares held in
PL Retirement Trust and the 4,000 NAB shares) $ 289,023.00Self-managed super fund $ 472,108.00
VicSuper account $ 704,210.43Total $ 2,630,314.43
At the time of George’s death Julie was employed as a manager at a large law firm and earned annual gross income of approximately $160,000. Julie is now employed by Cochlear Limited and receives a gross annual salary of $186,500 plus employer superannuation contributions. In February 2016 Julie was appointed to the board of the Victorian Responsible Gambling Foundation. She earns $11,038 gross per annum in that position, including superannuation. The evidence shows that in addition Julie receives the benefit, either personally, in her retirement trust or the superannuation funds, of interest and investment returns, and statutory contributions to superannuation. Julie’s current employment with Cochlear requires that she work two weeks each month in Sydney and two weeks each month in Melbourne. Her airfares and travel expenses to and from Sydney are met by her employer. While in Sydney she lives in rented accommodation which she pays for herself.
Julie is single and has no dependants.
Some building and repair work needs to be performed on Julie’s house. I have evidence from Kevin Glynn, licensed builder, as to the items in need of repair or replacement. I accept Mr Glynn’s evidence. I have evidence from quantity surveyor, Aaron Vickers, estimating the cost of work recommended by Mr Glynn at $94,471 including GST. I accept the evidence of Mr Vickers.
Julie wishes to have that work performed. She also intends to buy a new car in the next 18 months. She accepts that she has sufficient funds in her bank accounts to cover the cost of the works and the purchase of the car.
It is clear that, at least for as long as she remains in employment, Julie’s wealth will continue to accumulate and grow.
Julie’s health
In February 2012 Julie was diagnosed with a stage 3 malignant melanoma. She required surgery on 27 February 2012 and again on 16 March 2012. She requires ongoing supervision and examination in relation to that condition, and has been advised by her treating doctors that the melanoma ‘potentially may cause serious long-term medical problems’. No detail was given in evidence as to the nature, or the degree of risk of occurrence, of those problems.
Julie suffers osteoarthritis, particularly affecting her right knee. She has consulted with Mr Christos Kondogiannis, orthopaedic surgeon, in May 2013 and May 2015. Mr Kondogiannis diagnosed osteoarthritis predominantly of the right patella-femoral joint, which was likely to deteriorate with time, resulting in decreasing function. Mr Kondogiannis considered it possible that this would ultimately lead to the need for joint replacement surgery, the cost of which he assessed at between $20,000 and $25,000 in the absence of complications. Julie has private health insurance.
Julie considers her health to be ‘okay’ for a person of her age. She suffers considerable trouble with osteoarthritis, particularly affecting her knees. These difficulties do not currently prevent her from working. She intends to keep earning an income as long as she feels physically able, and would like to retire in her sixties.
Maria’s financial position
Maria does not rely upon a competing financial need of her own as a factor to take into account in assessing Julie’s claim.
Maria’s current wealth can be summarised as follows:
Home at 11 Koornalla Crescent, Mount Eliza $ 914,000.00
Shares in public companies $ 1,534,885.52
Commonwealth Bank account $ 904,059.13
Gold bullion $ 450,000.00Total $ 3,802,944.65
Maria’s income for the year ended 30 June 2013 was $141,301. The only source of Maria’s income is dividends and interest earned on assets which she owns.
Before migrating to Australia, Maria worked as a mother and child health nurse. George encouraged her to cease work, even while she was still living in Hungary. With George’s encouragement she has not worked since arriving in Australia. At that time she had no significant assets of her own. Her current assets reflect gifts from George over the years and the transfer of jointly owned assets consequent upon George’s death.
Legal principles
Part IV of the Act, which is entitled ‘Family Provision’, provides the Court with various powers associated with the making of a ‘maintenance order’. Maintenance orders are dealt with in s 91 which, as it applies in this proceeding,[1] reads as follows:
[1]The section has subsequently been amended.
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 responsibility to make provision.
(2)The Court must not make an order under subsection (1) in favour of a person unless—
(a)that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.
(3)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—
(a)his or her will (if any); or
(b)the operation of the provisions of Part I, Division 6; or
(c)both the will and the operation of the provisions—
does not make adequate provision for the proper maintenance and support of the person.
(4)The Court in determining—
(a)whether or not the deceased had responsibility to make provision for a person; and
(b)whether or not the distribution of the estate of the deceased person as effected 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—
makes 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 subsection (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, 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.
Counsel for the plaintiff accepts that in order for the plaintiff to establish that she is entitled to provision from George’s deceased estate she must demonstrate:
(a) That George owed her a responsibility to make adequate provision for her proper maintenance and support (s 91(1)), at the date of his death;
(b) That the provisions of the will did not make adequate provision for her proper maintenance and support (s 91(3)); and
(c) What the adequate and proper level of maintenance and support for her is.
The legislation requires that consideration be given to each of the matters in s 91(4) (e) through to (p) in determining whether the two jurisdictional requirements under s 91(1) and s 91(3) are met.
The test to be applied in establishing whether those two requirements are met is that stated by Lord Romer in Bosch v Perpetual Trustee Company Ltd,[2] as follows:
[I]n every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.
The ‘responsibility’ owed by a deceased to a claimant under s 91(1) is based upon the relationship between the deceased and the claimant, and the claimant’s need,[3] the latter being a relative concept.[4] It has been described as a ‘moral duty or obligation’ on the part of the deceased to make provision for the proper maintenance and support of the claimant.[5] The starting point in any analysis of whether a testator has failed to meet their obligations under s 91 is that significant weight must be placed upon the principle of the deceased’s freedom of testation,[6] with the Court only interfering with that freedom in circumstances where the testator has failed in their moral duty toward the claimant.[7] The moral duty is not simply to make merely adequate or sufficient financial provision for a claimant, but to measure that provision by what is right and proper according to community standards.[8]
[2][1938] AC 463, 478–9. See also the remarks of Nettle JA in Blair v Blair (2004) 10 VR 69, 84 [41].
[3]See eg Flocas v Carlson [2015] VSC 221, [295] (McMillan J).
[4]Collicoat v McMillan [1999] 3 VR 803, 815–19 [36]–[45] (Ormiston J); also Blair v Blair (2004) 10 VR 69, 75–6 [13].
[5]Blair v Blair (2004) 10 VR 69, 75–6 [13].
[6]Grey v Harrison (1997) 2 VR 359, 363 (Callaway JA).
[7]See eg Baxter v Baxter [2014] VSC 377, [52] (McMillan J).
[8]Collicoat v McMillan [1999] 3 VR 803, 818 [43] (Ormiston J); see also Blair v Blair (2004) 10 VR 69, 77–80 [16]-[24] (Chernov JA).
The Victorian Court of Appeal, in Blair v Blair,[9] considered the appellant’s argument that a claimant under s 91 of the Act, who was an adult son of the testator and was ‘in good health, earning an income, established in life and able to support himself’, should have to show some special need or special claim to justify the intervention of the Court under the Act.[10] Chernov JA, with Nettle JA and Hansen AJA agreeing, stated as follows:
[9](2004) 10 VR 69.
[10]Ibid 78 [20].
It is plain enough that s 91(4) – particularly paragraphs (e), (f) and (h) – requires the court, in considering the jurisdictional issues, to take into account what could be described as the applicant’s moral claims on the estate and his or her financial needs, but they do not elevate them to a special status and do not require these matters to be established as a pre-requisite to a successful application….[I]t seems to me that, by stipulating the matters to which the court must have regard in determining the jurisdictional questions, the legislature has made it apparent that the court should not approach these matters with the pre-disposition [sic] contended for by the appellant…
To say this, however, is not to overlook the observations of Ormiston J in Collicoat that ‘need’ must be demonstrated by the claimant ‘before the jurisdiction is exercised’ and that:
…those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support. The extent to which this requirement has been satisfied…must, of course, be considered in the light of the provisions made for each applicant.
It is true that Ormiston J spoke of an applicant establishing a special claim – because, for example, he or she had ‘contributed to the building of the testator’s estate or given other assistance worthy of recognition’ – or a special need – because, for example, he or she suffered a financial disaster – but his Honour did so in a context where he was considering the position of a middle aged son who had enjoyed ‘reasonable prosperity’. On the face of things, such a claimant may well have difficulty in establishing a relevant need, but in certain circumstances…he or she might demonstrate that he or she has a ‘special claim’ on the testator’s estate or a ‘special need’, and was thus entitled to a favourable order…
Thus, although it may be very difficult for an adult son, who is in an independently sound financial position, to establish the jurisdictional requirements, it does not necessarily mean that he must show that he has some special need or claim before he can succeed on those issues.[11]
[11]Ibid 78–9 [20]–[21].
In the very recent decision of the Court of Appeal, Jones (a pseudonym) v Smith (a pseudonym),[12] the Court confirmed that it was essential to success that a claimant establish need,[13] but that need is a relative concept,[14] which
[is] to be assessed in light of all the circumstances having regard to the factors in s 91(4)(e)-(p). It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant’s assets and income are just two facts that go into the melting pot to determine whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant.
[12][2016] VSCA 178.
[13]Ibid [65].
[14]Ibid [38], [66].
Relevant considerations will include not only the financial position of the claimant and the size of the estate, but also the manner in which the claimant has conducted herself.[15] An adult child will not be disentitled simply because he or she has a degree of wealth.[16] In appropriate circumstances a court may order provision beyond immediate and likely future need, allowing a ‘nest egg’ against unforeseen contingencies.[17]
[15]See s 91(4)(o); Goodman v Windeyer and ors (1980) 144 CLR 490 (Gibbs J).
[16]Berkelmans v Bulach [2009] VSC 472, [73] (J Forrest J).
[17]McCann v Ward & Burgess [2012] VSC 63, [32] (Hargrave J).
Analysis
There is no relevant dispute between the parties as to the factual matrix of this case; as such, the only issue to be determined is whether the plaintiff has made out the existence of the jurisdictional requirements contained within s 91(1) and s 91(3) of the Act. The existence of a responsibility on the part of the deceased to make adequate provision for the plaintiff’s maintenance and support is uncontentious. So much was conceded by the defendant. Julie is George’s daughter, and their relationship, according to her own evidence and to that of her brother Tom, was at all times a close and loving one. The current will provides that in the event of Maria dying within one month of George’s death, Julie was to receive half of the residuary estate.
In oral submissions counsel for the plaintiff emphasised two reasons why he said the plaintiff’s claim ought to succeed. The first went to the critical issue of establishing need. Counsel for the plaintiff put the argument in this fashion:
Now the first one is this, the plaintiff is now 54 years of age, she is a single lady with no children, she does not have a partner or spouse to support her and in my submission people who do live alone or singly have to provide everything for themselves, they don’t have the care and support of someone, they don’t have the financial resource that another can bring into a relationship and as one gets older, the whole burden of providing for one’s retirement and ongoing future income when one stops working all falls on one person, not two people as is often the case today.
Counsel emphasised that though the plaintiff may work for another 5 or 10 years, she would likely then live for another 20 to 25 years without any means of increasing or preserving the present value of her retirement investments.
The only current financial needs identified were the renovations to the plaintiff’s home at a cost of $94,471, and the purchase of a new car. The plaintiff acknowledged that these needs could be met by her from current savings. The only particular future need identified was the cost of knee replacement surgery. However, on the medical evidence, such surgery was a possibility rather than a probability, and the plaintiff has health insurance which is likely to ameliorate that cost if it arises. In any event, the cost was not large.
As I understand it, the argument for the plaintiff is that she should be provided with a nest egg to guard against future contingencies. These contingencies might have included the particular health issues faced by Julie, being the melanoma and the arthritis affecting her knees. However, there was little evidence as to future risks associated with either of those disorders. Beyond the possible cost of knee replacement surgery, there was no evidence upon which I could conclude that either disorder created a significant future financial risk for the plaintiff, and the case was not strongly argued in that fashion.
Julie is almost 55 years of age. Her evidence was that she would like to retire in her sixties, and that she intends to keep earning an income as long as she is physically able. Clearly Julie is strongly motivated to work. She has been in full-time employment since graduating in 1986. There was no evidence of any particular risk or instability in her past or likely future employment. I conclude that Julie will probably be able to maintain herself into her sixties in the sort of well-paid employment she was in at the time of George’s death.
Of course, the level of Julie’s need should be assessed in the context of all of the s 91(4)(e)–(q) factors. One of the several factors particularly emphasised by counsel for Julie was the financial and personal care Julie provided to her mother Eva and brother Peter, at her father George’s request. Counsel argued that this history ‘… enhances the moral obligation which [George] owed to [Julie].’ I accept Julie’s evidence that the task of caring for her mother and brother, particularly when their respective mental illnesses were at their most severe, was a terribly draining and difficult one which she performed without question or complaint, and at considerable cost to herself. It is not contradicted on the evidence that Julie undertook the role of carer at her father George’s request; and in my view, her having done so allowed George to pursue a life freer of the burden which Eva’s illness may otherwise have placed upon him. I note that the burden placed upon Julie in her role as carer was not only emotional but financial, as her father, although a man of some wealth, did not provide assistance to cover all of Eva’s needs, such that Julie and Tom were obliged to provide financial support to her out of their own resources over a number of years.
It is also relevant to note that the estate is relatively large, that the defendant has been well provided for, and that there is no competing financial claim by the defendant or any other person. I also take account of the fact that Julie received approximately $300,000 from George in 2003, together with a benefit of the bequest of the NAB shares in George’s will, valued at the time of his death at just under $140,000.
After taking account of all relevant factors, I am unable to conclude that the provisions of George’s will did not make adequate provision for Julie’s proper maintenance and support. Julie’s current financial position is a comfortable one. She is well qualified and has a very strong work history. She is strongly motivated to work and it appears likely she will remain in well remunerated employment into her sixties. Julie has no debt and has shown a capacity to accumulate assets. She has the benefit of the not insignificant amount of money which her father has already given her, both under his will and prior to his death. There is no dark financial cloud on the horizon. Whilst it is true that Julie has nobody else to support her, it is equally true that she has no-one to support but herself. In all the circumstances Julie has failed to establish a need which George, as a wise and just testator, failed to meet.
The plaintiff’s application for further provision from the estate of the deceased is dismissed. I will hear from the parties as to appropriate orders, including as to costs.
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