Lucas Missen (a minor by his litigation guardian Angela Moleta) v Leigh Missen
[2016] VSC 539
•15 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2014 05521
IN THE MATTER of the will and estate of Leonard Albert Missen, deceased
IN THE MATTER of an application under Part IV of the Administration and Probate Act 1958
BETWEEN:
| LUCAS ALEXANDER PHILIP MOLETA MISSEN (a minor by his Litigation Guardian ANGELA HELEN MOLETA) | Plaintiff |
| v | |
| LEIGH JOHN MISSEN and (who are sued in their capacity as Executors of the Will and Estate of LEONARD ALBERT MISSEN) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May and 1 June 2016 |
DATE OF JUDGMENT: | 15 September 2016 |
CASE MAY BE CITED AS: | Lucas Missen (a minor by his litigation guardian Angela Moleta) v Leigh Missen and anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 539 |
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TESTATOR’S FAMILY MAINTENANCE – Application under Part IV of the Administration and Probate Act 1958 – Application by grandchild of the deceased – Application made prior to 2015 amendments introducing concept of ‘eligible person’ – Where the child’s father and son of the deceased predeceased the deceased – Whether the deceased has moral responsibility for proper maintenance and support of grandchild – Administration and Probate Act 1958 (Vic), section 91(4) – Adult son who contributed to farm work and care of elderly father left entire estate – Applicant has funds in Court from father’s estate – Applicant had minimal contact with the deceased – Re Davies [2014] VSC 248, Petrucci v Fields [2004] VSC 435 considered and distinguished – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Jones | F Butera & Co |
| For the Defendant | Mr S McNab | BJT Legal Pty Ltd |
HER HONOUR:
Background
This application was made on 12 October 2014 under Pt IV of the Administration and Probate Act 1958 (‘Act’) by Angela Moleta (‘Angela’), the litigation guardian for the plaintiff, Lucas Missen (‘Lucas’), for orders that provision of proper maintenance and support be made in the form of one half of the net estate of Leonard Albert Missen.[1] The background facts and relationships between the parties are set out below.[2]
[1]However, at trial, counsel for Lucas submitted that an appropriate award would be an amount equivalent to thirty per cent of the estate.
[2]For ease of reading, and to avoid confusion between parties and others with the same surnames, I have used first names throughout these reasons. No disrespect whatsoever is intended.
Leonard Missen (‘Len’) died on 24 April 2014 aged 90, leaving a last will executed on 12 August 2009. Following his death, his son, Leigh Missen and Leigh’s wife, Karen Missen (‘Leigh’ and ‘Karen’), the named executors in his last will, obtained a grant of probate on 1 October 2014.
Len was a farmer on land owned by him in Ballan. Len had been married twice. Len’s second wife, Elizabeth Missen (‘Betty’) predeceased him and died in August 2008. There were no children from this relationship. Len had two sons with his first wife who survived infancy. The youngest, Leigh, the first defendant, was born on 24 December 1956, and was 57 years old when his father died. Leigh has been married to Karen, the second defendant, for 29 years and they have three children: Dale born in 1990, Brad born in 1993 and Sarah born in 1995. Leigh had worked with Len on the family owned farms since 1976, although they never formally farmed in partnership.
Gary Missen, the eldest son of Len’s first marriage, was born on 13 March 1956 and took his own life on 24 May 2005. Thus, he predeceased his father. Gary married twice. With his first wife, he had one son, Andrew Missen, born in 1987. With his second wife, Angela, he had another son, Lucas, born on 17 July 2001. Gary and Angela separated when Lucas was ten months old. Lucas was five years old when Gary died.
Provision from the deceased to his children during his lifetime
In 1998, Len gifted one thirty acre block of land in Rockbank, Victoria, to Gary. Shortly thereafter Gary sold this block of land for about $215,000.
From 1992 to 2002, Leigh and Karen rented a farm in Ballan from the deceased. Work was done on the house and the farm by Leigh and Karen. In 1996, forty seven acres of the farm and the house at Ballan was transferred from Len’s sole name to joint names with himself and Leigh. This farm was sold in 2002, and Leigh and Karen now live on a farm they own in Rowsley, near Bacchus Marsh.
The last will and estate of the deceased
Len made his last will on 12 August 2009 (‘the will’). The whole of his estate was left to Leigh. In the event that Leigh were to predecease him, the estate was left to be shared equally between Leigh’s children and Gary’s older son, Andrew. No provision was made for Lucas. No other wills were located, and there was no dispute as to Len’s capacity at the time he made the will.
A large portion of the estate value is farming land (agreed to be valued at $2,155,00). The estate’s current assets[3] are:
[3]Affidavit of Karen Lorraine Missen sworn 24 May 2016.
Assets
Amount
Properties at Missens Lane and Western Park Road $2,155,000.00
Stock Value $39,700.00 Plant and Equipment value $18,845.00 NAB Investment Account $26,665.46 NAB Working Account $115.46 Monies held in trust BJT Legal $23,324.85 Total $2,236,651.00
The estate’s current liabilities are:
Liabilities
Amount
Geoff Birkett – stock cartage $275.00 O’Rourke Memorials - headstone $10,000.00 BM Skips – rubbish removal $400.00 Total $10,675.00
The net value of the estate is $2,225,976.15.
Previous Litigation
Len did not provide any financial support to Lucas during his lifetime. Lucas received $355,000 from Gary’s estate, which was a result of a County Court proceeding brought by Angela on Lucas’ behalf, which resolved before trial. The settlement resulted in a 60/40 split of Gary’s estate between Lucas and his half-brother, Andrew. According to terms of settlement in that proceeding dated 16 October 2009, this money is currently held by the Senior Master of the Supreme Court, which becomes available to Lucas when he turns 18 years old, and is currently accruing interest. No funds have been drawn from this fund to meet Lucas’ educational or other expenses. At the end of the 2014 financial year, these funds amounted to $445,388.98. Lucas will turn 18 in July 2019.
Relationship between the plaintiff and the deceased
Len and Lucas had no face to face contact after Gary died. Angela gave evidence that Lucas and Len spoke by telephone every four to six weeks. Leigh and Karen dispute this, and say that there was little if any contact between Lucas and his grandfather after Gary died in 2007, and limited contact before that. It is clear that the proceeding commenced by Angela in 2008 created an estrangement between Angela and the wider Missen family, and, given that Lucas was living with his mother, and was of tender years, there was little opportunity for Len and Lucas to form a relationship. Following the death of Betty in 2008, no further gifts or cards were sent by Len to Lucas on birthdays or Christmas. Karen said that she sent cards and gifts to Lucas until 2015, but these overtures were never acknowledged or reciprocated by Lucas or his mother.
The plaintiff’s current circumstances
Lucas attends Xavier College (‘Xavier’) and is currently in Year 9. He has attended Xavier since Year 7. The cost of attending for the 2015 school year was $28,852. Lucas is apparently academically able, and intends to continue tertiary education once he has completed year 12, and possibly undertake post‑graduate education. Lucas also requires orthodontic braces in the near future, which will cost approximately $7,000.
The litigation guardian’s current financial and medical circumstances
Angela suffered with an anxiety disorder and depression after Lucas’ birth. She currently suffers from severe depression and is under the care of a psychiatrist, Mr Michael Dowd. She was diagnosed with chronic myeloid leukaemia in December 2011[4] and is currently under the care of an oncologist, Dr Kirsten Herbet, for her treatment, who has advised her to limit her work to only two days a week. Both specialists provided reports to the Court, and the evidence regarding Angela’s state of health was not challenged. Angela is not able to work only two days a week due to work commitments and financial constraints. Her employer, Centrelink, has been accommodating of her health needs, but insists that she work three days per week.
[4]This is a terminal illness that is currently in remission as a result of taking prescribed medication. Symptoms from the medication include nausea, headaches and bone and pain fatigue on a daily basis.
Angela is 54 years old and is living with her mother, Mary Moleta (‘Mary’) and Lucas at Mary’s home in Glen Iris. She pays no rent or utility bills, but makes a contribution to the household through the purchase of groceries.
Angela has $475,000 in savings, a share portfolio valued at $13,000 and $300,000 in a superannuation fund. Whilst her mother is paying for Lucas’ school fees, $80,000 of the $475,000 in savings is maintained in a separate savings account to cover school fees if required. This account is maintained by Angela contributing $305 a fortnight from her salary.
Angela is concerned that within the not too distant future, the debilitating symptoms caused by her medication regime will require her to cease work, and that at some stage, if her health deteriorates, she will need more expensive medical treatment and possibly even in-home care.
Mary Moleta’s current financial circumstances
Mary is aged 76 years old. She is the maternal grandmother of Lucas and mother of Angela. She is a self‑funded retiree. Her husband, Lucas’ maternal grandfather, died in 2004. She has no other children or grandchildren apart from Angela and Lucas. She is currently in reasonably good health, although she is required to take medication for some chronic conditions. However, she anticipates that her needs may change as she gets older.
Mary has the following assets:[5]
[5]Mary is also a trustee of a family trust. The family trust holds one of the properties referred to in the table of Mary’s assets. The property valuations are based upon rate notices tendered during the course of the trial, and Mary Moleta’s evidence.
| Assets | Amount |
| 239 Warrigal Road, Burwood | $735,000.00 |
| 7 Barbara Avenue, Glen Iris | $1,305,000.00 |
| 6 Coane Street, Ormond | $950,000.00 |
| Sale proceeds of 50% share in 28 Goodwood Street, Richmond | $370,000.00 |
| Total | $3,360,000.00 |
Mary has no significant liabilities.
The defendants’ current circumstances
Leigh is a farmer, and Karen is a bookkeeper, and kept the books for the farming enterprises of both Leigh and Len. Karen ceased paid work in November 2013, as she and Leigh considered Len required more attention than what she was able to provide when she was working part‑time. Leigh and Karen Missen have the following assets:[6]
[6]The following is a summary of their financial position tendered through Karen at trial.
Leigh and Karen Missen Joint Assets
Amount
Farm Cheque Account at 25 May 2016 $1,146.73 Personal iSaver and Everyday accounts combined $7,765.27 Rowsley land 67 Acres $275,000.00 Rowsley land 210 Acres $359,000.00 Total $642,912.00
Leigh Missen Assets
Amount
Superannuation balance as at 30 June 2015 $890.80 Bacchus Marsh property $50,000.00 Total $50,890.80
Karen Missen Assets
Amount
Superannuation as at 30 June 2015 $758,510.45 Bacchus Marsh property $50,000.00 Total $808,510.45
Total Assets $1,257,116.92
Leigh and Karen Missen have the following liabilities:
Joint Liabilities of Leigh and Karen Missen
Amount
Farm Overdraft (incorporating $154,000.00 from deceased’s Term Deposit)[7]
$195,196.33
[7]The reference to $154,000 records a sum of money paid by Len into Leigh and Karen’s overdraft account shortly before his death, from a term deposit which had matured. According to Karen, this amount was paid to them in case they needed it to look after Len. However, Len died shortly after the transfer was made.
The financial position of Leigh and Karen altered somewhat between the time when Leigh and Karen made their first affidavits in this proceeding (14 April 2015) and the date upon which Karen prepared the financial statement reproduced above (25 May 2016). In April 2015, Leigh and Karen deposed to having recently sold their property in Parwan for $1.2 million, using the proceeds to retire debt. They had $380,000 of the proceeds left, which they planned to use to invest in farm machinery. Karen had roughly $400,000 in superannuation, and Leigh none.
By May 2016, Leigh and Karen’s overdraft account had a debit balance of $195,196.33. Leigh’s superannuation balance is still negligible, but Karen’s superannuation balance has climbed to $758,510.45.
As noted above, Leigh and Karen have three adult children.
Leigh suffers from a macular degenerative disease known as Stagardt’s disease. This genetic eye condition has resulted in Leigh no longer being able to hold a driver’s licence, and in order to read and write he must use a reading aid. It is likely that this condition will continue to worsen, which is likely to affect his ability to work on the farm in the future.
Affidavits and Evidence
The plaintiff relied upon the following affidavits at trial:
(a) an affidavit of Angela Moleta sworn on 25 February 2015;
(b) two affidavits of Angela Moleta sworn 8 May 2015, responding to the evidence given by Leigh and Karen in their affidavits sworn on 14 April 2015; and
(c) an affidavit of Mary Moleta sworn on 6 March 2015.
These affidavits depose, in summary, to the following matters:
(a) the relationship between Gary and Angela (which was relatively brief, they married in March 1999, and separated about three years later), and between Gary and Lucas prior to Gary’s death in 2007;
(b) the relationship between Lucas and the Missen family before and after Gary’s death;
(c) the deterioration of the relationship between Angela and the Missen family after a claim was made on behalf of Lucas upon Gary’s estate in 2008;
(d) Lucas’ educational and financial needs, and in particular, his and Angela’s aspirations for his post-secondary education;
(e) Angela’s health and financial position, which is said to be precarious;
(f) a commentary upon the defendants’ financial position;
(g) visits to see and telephone calls to Len by herself and Lucas;
(h) Karen’s refusal to allow Lucas to stay overnight at her home to enable Lucas to attend Len’s funeral; and
(i) Mary’s financial support for Angela and Lucas.
Lucas did not give evidence either by way of affidavit or at trial. Given his age and the nature of the issues canvassed at the trial, I observed during the course of the hearing that no Jones v Dunkel[8] inference ought to be drawn from the Lucas’ failure to give evidence. Counsel for the defendants did not suggest that I should draw such an inference.
[8](1959) 101 CLR 298.
Both Angela and Mary gave further brief oral evidence at trial, and were subject to cross‑examination. Their evidence at trial was largely consistent with their affidavit evidence. Angela gave more detailed evidence about what she did at work, and the measures her employer had put in place to address her limitations, in particular, her fatigue. However, she is not coping well at work.
Angela confirmed that she had no personal contact with Len after her separation from Gary. She believed Gary stopped taking Lucas to the farm to see Len and Betty in 2004. She agreed that she has been estranged from the Missen family since 2008, when she made a claim against Gary’s estate on Lucas’ behalf, although Leigh and Karen would continue to send birthday and Christmas cards after that. At first, Len would not speak to either her or Lucas, but then he ‘softened’, and would speak to Lucas by telephone on about a monthly basis.
Angela confirmed that her mother is happy to pay Lucas’ school fees, but it is at a ‘huge’ cost to her. She has deliberately not drawn upon Lucas’ funds in Court. She anticipates that Lucas will need financial support to obtain post-graduate qualifications. She is a one-third beneficiary of the family trust.[9]
[9]In her affidavit sworn on 25 February 2015, Angela deposed that her share of her rental from the trust pays for her tax obligations and private health insurance premiums.
At trial, Mary tendered rate notices showing the council valuations of the properties accrued by her and the family trust. She gave evidence that the income was not ‘great’ because the rents do not bring in a large amount. She confirmed that Angela and Lucas have lived with her since 2003, and that she and Angela get on well. She agreed, with some hesitation, that Lucas will in all likelihood ultimately inherit her assets and Angela’s assets. She will continue to endeavour to pay Lucas’ school fees, because that is what she would expect to do as a grandmother. She agreed that the funds in Court have remained untouched because both she and Angela would like Lucas to have something for his future. As such, they go without certain things so as not to touch the funds in Court.
The defendants rely upon the following affidavits:
(a) an affidavit of Karen Missen sworn on 14 April 2015;
(b) an affidavit of Karen Missen sworn on 24 May 2016 (which provided an up to date summary of the financial position of the estate); and
(c) an affidavit of Leigh Missen sworn on 14 April 2015.
These affidavits focused on the following matters:
(a) the contact (or lack thereof) between Lucas and Len;
(b) the health and financial circumstances of Leigh and Karen, including the use of their farm properties to derive income, the financial circumstances of the estate and their observations of the relationship between Len and Lucas (or lack thereof); and
(c) the assistance provided by them to Len, particularly as he grew older and after Betty died, and commentary upon the financial circumstances of Lucas, Angela, and Mary.
Both Leigh and Karen gave oral evidence at trial. Again, their evidence was largely consistent with their affidavit evidence, save for the evidence about their financial position, which has changed over the course of the past year or so. Leigh gave evidence that his children were getting on in life. He has had very little contact with Angela at all. He spent much more time with Len over the twenty years before his death, as Len’s health deteriorated. They never actually farmed together, but helped each other out, with most of the assistance being one way as Len grew older. His farm was about 15 minutes’ drive from Len’s farm at Ballan. He is currently running the Ballan farm on behalf of the estate.
Leigh did not believe there was any contact between Len and Lucas after Gary’s death. He spoke to his father daily, or every second day, and Len never mentioned that he had spoken to Lucas, while he would usually report who had called or visited him.
Leigh agreed that he, and the family generally, were devastated by the claim made by Angela on behalf of Lucas against Gary’s estate. It was a tough time for the family, as Gary had been found hanged by his son Andrew in 2007, and Betty died in 2008.
Leigh gave evidence that he sold his farm at Parwan to pay off accumulated debts and invest in new farm machinery.
Under cross‑examination, Leigh agreed that Len gave him land in the late 1980s. He said that he holds no animosity towards Lucas, but he disapproves of Angela’s conduct, first in bringing the claim against Gary’s estate, and in bringing this claim. Neither Angela or Lucas had made any effort to rekindle the relationship. Len drew up the list of invitees to his 90th birthday party, which did not include either Angela or Lucas.
Leigh was not aware of Gary ever taking Lucas to see Len at the farm. He disagreed with the proposition that Lucas might have been scared of Gary because of his erratic behaviour: Leigh accepted that Gary had ‘issues’, but he was a devoted father and never behaved erratically around children. Leigh never discussed the terms of Len’s will with Len: he agreed that prior to his death Gary would probably have been a beneficiary of Len’s will. Len was very close to Leigh’s children, but would have not sent cards and gifts to them, or any of his grandchildren after Betty’s death.
Karen gave evidence as to how she prepared the most up to date statement of financial position for her and Leigh.[10]
[10]Exhibit 4.
Karen confirmed that she had very few visits from Angela and Gary, or Gary and Lucas. She believes she only met Lucas on two occasions. She believed Gary had problems in getting access to Lucas after he separated from Angela.
Karen gave evidence about her relationship with Len. It became particularly strong after Betty died. Len had always assumed he would die before Betty, so he had no plan in place when she died unexpectedly in 2008, six years before his death. He continued to farm, but Karen and Leigh did everything for him: she cooked, cleaned, shopped, took him shopping for clothes and to medical appointments, and arranged for friends and relatives to check on him regularly. She did the bookkeeping for Len’s farming business.
Karen was questioned about her and Leigh’s refusal to have Lucas stay overnight at their place so that Lucas could attend Len’s funeral. She simply felt that, given they barely knew Lucas, this was not the occasion to rekindle a relationship with a 13 year old boy.
Karen gave evidence about her children’s education and financial circumstances. Dale has a HECS debt, Brad took out a personal loan to finance his trade qualifications, and Sarah will have a HECS debt and has two part-time jobs. She stated ‘that’s what normal children do as far as I am aware’.
Karen was questioned about the significant change in her and Leigh’s financial circumstances between April 2015 and May 2016. In particular, they had moved from a positive cash position of $380,000 (which would have included the $154,000 transferred to them by Len in April 2014) to a debt of nearly $200,000.
Karen confirmed that she and Leigh used the proceeds of the sale of the Parwan property to purchase updated farm equipment, to rectify a problem with the Australian Taxation Office (‘ATO’), and to pay off loans accumulated through the millennium drought. Leigh was required to pay a substantial sum into her superannuation account in order to satisfy the requirements of the ATO.
Karen confirmed that Len had transferred the sum of $154,000 to her and Leigh’s overdraft account. He did that to enable them to look after him, but died shortly after. They have used it to pay ongoing expenses. When questioned about whether it would have been necessary to use these funds to pay for expenses associated with Len’s farm, given that the financial accounts show that it operated at a modest profit, Karen replied that she and Leigh have not billed the estate for the time they have spent and the expenses they have personally incurred in running the farm after Len’s death.
When questioned about the family’s attitude to Angela and Lucas, she explained that the family had to cope with Andrew finding his father dead and then the claim brought against Gary’s estate. While she did not go into any detail, it is apparent that the family was particularly concerned about Andrew’s emotional state after his father’s death. She believes Betty’s fatal heart attack was caused by the stress Betty suffered as a result of having to engage a lawyer to recover a loan from Gary’s estate. The family then had to deal with the grief of an 84 year old man who had lost his son and his wife in short succession. That said, in response to a question put to her in re‑examination as to her current attitude to Lucas, Karen expressed a willingness, if not a desire to have a relationship with Lucas:
I would love to have a relationship with Lucas. I’ve said that before, I’m a good auntie, I’ve got lots to share. I’ve raised three loving beautiful children. I have eleven other nieces and nephews, who have all enjoyed the love and affection I can give them. I’ve, I would love to have that for Lucas as well.
It is clear from the evidence that there are very few factual issues which need to be resolved in order to determine this application, although counsel for Lucas did submit that I should not rely upon the statement of financial position prepared by Karen and tendered into evidence at trial. However, having observed Karen giving evidence, I see no reason to disbelieve her about such matters.
Further, while there is clearly an estrangement between the Missen family (including Len before his death) and Angela, which in turn has had the effect of there being no real relationship between Lucas and his late father’s extended family, I would be hesitant, and do not find it necessary, to attribute any particular blame for that estrangement to any particular party. I understand, in the circumstances, why Leigh and Karen might be critical of Angela’s conduct in bringing these claims against Gary’s and Len’s estate. However, Angela has raised Lucas as a single mother for most of his life, and is clearly fiercely devoted to him, and is doing the best she can to promote his interests and secure his future, in circumstances where her own situation is somewhat precarious. In that, she has been supported by Mary, whose efforts in supporting Angela and Lucas have been nothing less than heroic.
On the other hand, Leigh and Karen appear to me to be good, sound people, who have worked hard to accumulate their assets and raise their family. They have shouldered the burden of supporting Len through what must have been a very difficult and traumatic time, with the sudden deaths of Gary and Betty, and dealing with the stress of litigation brought by someone who was almost a stranger to them, as well as supporting Len through his declining years.
Accordingly, the relationship between Lucas and Len, or the absence of any relationship, is not something that can really be sheeted home to any particular party, and certainly not to Lucas. The absence of any real relationship is a neutral factor in determining whether, at the time of Len’s death, Len had a moral duty to provide for Lucas’ proper maintenance and support.
Applicable Law
The Act was substantially amended on 1 January 2015. In the current proceeding, the applicable version of the Act is the Administration and Probate Act1958 (amended as at 26 October 2013). If the current version of the Act applied to Lucas’ claim, Lucas, as a grandchild not dependent wholly or partly upon the deceased, would have been ineligible to bring a claim against Len’s estate.
Counsel for Leigh and Karen submitted that the amendments merely codified the position at common law: while counsel for Lucas did not make express submissions to the contrary, I assume that he would disagree. Given the comments in the pre-amendment authorities concerning grandchildren’s claims to the effect that grandchildren can neither be ‘ruled in’ or ‘ruled out’ until all the facts are examined,[11] I consider that the amendments have effected a change in the law. In particular, under the current legislation, a grandchild in the position of Lucas could not bring a claim based largely on an argument that his grandfather had a moral obligation to provide for him because his son, Lucas’ father, had pre-deceased Len.
[11]See Petrucci v Fields [2004] VSC 425, [64] per Mandie J.
The applicable section of the Act is section 91:
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.
In Feehan v Toomey (‘Feehan’),[12] McMillan J summarised the task before the Court in determining applications under Part IV of the Act, as follows (citations omitted):
[12][2014] VSC 488, [17]-[18].
In any application for further provision pursuant to s 91 of the Act, the Court must determine three questions:
(a)Did the deceased, at the date of her death, have a responsibility to make provision for the proper maintenance and support of the plaintiff?
(b)If so, did the deceased, in the distribution of her estate, make adequate provision for the proper maintenance and support of the plaintiff?
(c)If not, what is the amount of provision (if any) that the Court should order?
In considering these questions:
(a)the Court must have regard to the matters set out in ss 91(4)(e)–(p) of the Act;
(b)the Court must determine whether the deceased had a moral duty, responsibility or obligation to an applicant;
(c)keeping in mind the weight given to the freedom of testation, the Court will only interfere if the testator has failed in his or her moral duty;
(d)that moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards;
(e)because of the seriousness of the allegation that a testator has abused that freedom, the principles concerning the qualities of the proofs required set out in Briginshaw v Briginshaw are applicable;
(f)if an applicant is successful in establishing that a deceased had a moral duty, responsibility or obligation towards him or her, the onus lies with the applicant to demonstrate the extent of that provision; and
(g)the extent of provision should be determined at the date of the trial, taking into account the plaintiffs’ position at that time.
Whether or not the deceased had responsibility to make provision for a person
In Victoria, in order to determine whether or not the deceased had the responsibility to make provision for a person one must satisfy that there was a moral duty to do so, and, that the testator ought to have given provision as a just and wise testator.[13] In Collicoat v McMillan, Ormiston J construed the term ‘moral duty’ to be:
what is generally considered, according to accepted community standards, to be the obligation of a testator to do what is right and proper for those members of his or her family whom one would expect to be entitled to share in the distribution of his or her estate on death.[14]
[13]MacEwan-Shaw v Shaw (2003) 11 VR 95, [27].
[14][1999] 3 VR 803.
In MacEwan Shaw v Shaw,[15] with regard to whether the testator was wise and just, Dodds-Streeton J said:
the court was required to place itself in the testator’s shoes and determine what testamentary dispositions ought to have been made by a just and wise testator in all the circumstances of the particular case.[16]
[15](2003) 3 VR 95.
[16]Ibid [25].
The relevance of the testator’s intention
In Hughes v National Trustees Executors & Agency Co of Australasia Ltd, Barwick CJ said:
When attempting to decide what a particular testator or testatrix ought as a just and wise father or mother to have done, those reasons which that testator or testatrix actually entertained for his or her decision cannot, it seems to me, justly be ignored. Of course, if the evidence in the matter does not support such reasons, they cannot be acted upon simply because the deceased asserted or entertained them.[17]
[17]Hughes v National Trustees Executors & Agency Co of Australasia Ltd, (1979) 23 ALR (Barwick CJ).
The Court must have regard to the intention of the testator at the time of executing a will. In the recent case of Brimelow v Alampi,[18] McMillan J highlighted that the intention of the testator has always been a factor that the Court must have regard. As stated by counsel for Leigh and Karen at the commencement of his oral submissions, the starting point in this jurisdiction is freedom of testation. It is only where there is a failure of a moral duty to provide adequate provision for the proper maintenance and support of a plaintiff, according to objective community standards and the needs of a plaintiff, that the jurisdiction under s 91(4) of the Act is enlivened.
[18][2016] VSC 135, [14].
Claims by grandchildren
In Re Davies[19] McMillan J noted the following with regard to claims by grandchildren under Part IV of the Act (citations omitted):
The general rule is that the bare fact of the relationship between a grandparent and her grandchildren does not of itself create an obligation to make provision for that grandchild, as that responsibility rests on the child’s parents…In the absence of some special factor or unusual circumstance, prevailing community standards would not impose a responsibility on a grandparent to provide for a grandchild. However, these general principles must be read in the context of each case and grandchildren can neither be ruled in nor ruled out until all the facts are examined. The fact that a child’s parent has predeceased the grandparent is certainly a relevant factor.[20]
The observation in the last sentence in the extract above, to the effect that regard should be given to whether a grandchild has lost the support of a parent prior to the death of his or her grandparent, have also been made in Scarlett v Scarlett[21] by Vickery J and in Petrucci v Fields[22] by Mandie J.
[19][2014] VSC 248.
[20]Ibid, [71].
[21][2012] VSC 515, [101].
[22][2004] VSC 425 [64]-[65].
In Feehan,[23] McMillan J summarised the principles applicable to claims by grandchildren under the Act (this decision also predated the 2015 amendments), as distilled from the decision of Dodd-Streeton J (as she then was) in MacEwan-Shaw v Shaw[24] as follows (citations omitted):
[23]Feehan, [19].
[24][2003] VSC 318.
[T]he following general principles are applicable to claims by grandchildren:
(a)the general rule is that a grandparent does not have a responsibility to make provision for a grandchild. That is, the bare fact of the relationship itself does not create an obligation;
(b)such a moral obligation rests on the parent of the grandchild. If the parent provides shelter, accommodation, food and clothing, then the court is most unlikely to find that a deceased grandparent assumed a responsibility to provide for the grandchild in his or her will;
(c)in the absence of some special factor or unusual circumstance, prevailing community standards would not impose a responsibility on a grandparent to provide for a grandchild;
(d)however, it is clear that no person can be automatically excluded as a person to whom a testamentary obligation was owed. These general principles must be read in the context of each case, and grandchildren can neither be ruled in nor ruled out until all the facts are examined;
(e)the fact that a child’s parent has predeceased the grandparent is certainly a relevant factor. Where a grandchild has lost his or her parents at an early age, been taken in by the grandparents in circumstances where the grandparents assume the role of surrogate parents, and the grandparents die when the grandchild is still dependent upon them, these factors would prima facie give rise to a claim; and
(f)significant generosity by a grandparent to his or her grandchild, including contributions to the education of the grandchild, does not convert the grandparental relationship into one of obligation to the recipients. In other words, voluntary support, generosity and indulgence do not translate into a legal obligation to provide for the grandchild.
Plaintiffs’ Submissions
Counsel for Lucas submitted that in circumstances where his grandfather outlived Gary, Len should have made provision for him.
Counsel for Lucas submitted that, having regard to the matters enumerated in s 91(4) of the Act and the relevant authorities referred to above, the following factors support provision being made for Lucas from Len’s estate:
(a) Gary died when Lucas was 5 years old;
(b) since Gary’s death, Angela has been the sole carer of Lucas;
(c) Lucas and the litigation guardian live with Mary because Angela is unable to financially support herself. While Mary has been financially supporting Angela and Lucas, her ability to do so may be impeded as her needs change as she grows older;
(d) Angela is terminally ill and in remission from leukaemia. Her financial needs are unknown, as her health condition may require expensive treatment or care in the future;
(e) Angela’s ability to continue in the work force and to support Lucas is uncertain given the debilitating side effects of her treatment. At this stage he has no earning capacity of his own, and is unlikely to have any such capacity for many years;
(f) Lucas has been denied the ongoing financial support that would normally be provided by his father;
(g) given that Leigh owns a property, and has not given evidence of any particular financial need, any order for provision would not have a detrimental effect on Leigh’s financial position. Karen has a substantial amount in superannuation, and their children are grown;
(h) given the size of the estate, a generous approach to provision is justified; and
(i) while there was limited contact between Lucas and Len, no fault for that could be sheeted home to Lucas, who was only twelve years old at the time of Len’s death.
Counsel for Lucas relied upon the observations of McMillan J in Re Davies[25] regarding the entitlement of grandchildren for provision. In paragraph 41 of the written outline of submissions relied upon by Lucas, counsel submitted as follows:
[25][2014] VSC 248, [109]-[111].
In particular, it is relevant that:
(a) the estate is relatively large;
(b) there is only one competing claim being that of Leigh and he has not demonstrated any financial need that would be detrimentally impacted by an award of provision to the plaintiff;
(c) the inability to calculate the amount of provision needed with certainty is not a bar to the Court exercising its discretion;
(d) the question of needs is not to be narrowly focused or focused too much on the needs of the plaintiff;
(e) the Court is entitled to allow for contingencies which are no more than mere possibilities; and
(f) the Court should take a broad brush approach rather than an arithmetical approach.
Defendant’s Submissions
Counsel for Leigh and Karen submitted that Len had no obligation to make provision for Lucas for the following reasons:
(a) there was minimal contact between Lucas and Len after 2003 and no face to face contact after 2005. Leigh and Karen dispute that there was monthly telephone contact between Lucas and Len after 2008;
(b) Lucas was not financially dependent upon Len and further, Len never assumed financial responsibility for Lucas. The law provides that the responsibility for a child rests with a parent, and Lucas’ mother and grandmother have provided him with food, clothing and shelter and have funded his education to date;
(c) Lucas was at no time part of Len’s household; and
(d) Lucas has substantial funds from Gary’s estate which can be accessed for his support.
Further, counsel for Leigh and Karen submitted that the asset situation of Angela and her mother does not support the proposition that due to Gary’s death and Angela’s poor financial and health status Len should have provided for Lucas. Angela has substantial assets, is an only child, and there is a reasonable expectation that Lucas will ultimately inherit the estates of both his mother and grandmother.
It was noted that Mary has paid for Lucas’ school fees since 2014. If Lucas’ grandmother is unable to pay his school fees, Angela still has $80,000 set aside to cover school fees. If this fund is not available, then Lucas can rely on the funds held in Court referred to above. It was submitted that in addition to the fund held in Court, HECS will provide Lucas a vehicle by which Lucas can fund tertiary studies. After all, this is how two of Leigh and Karen’s children have funded or will fund their post-secondary education, along with part-time work.
Counsel for Leigh and Karen submitted that Lucas’ claim seems to be based upon two assumptions: first, that by reason of the blood relationship between Len and Lucas, Len had an obligation to provide for Lucas, and secondly, that had he outlived his father, Gary would have inherited from Len’s estate, and would have been treated equally with Leigh upon Len’s death. The first assumption cannot be justified on the state of the authorities, and indeed, there are four other grandchildren who have not inherited anything from Len’s estate, despite being a lot closer to Len than Lucas was. As for the second assumption, the main asset of the estate is farming land, and Leigh is the farming son. Gary never had any involvement in farming, so it cannot be assumed that Gary would have inherited a half share of Len’s estate.
Finally, Leigh (and Karen) had made a considerable contribution to Len’s welfare, including assisting him with his farming business, particularly after Betty died in 2008. Leigh may face difficulties in continuing farming given his deteriorating eyesight and the hard physical nature of farm work.
In my view, having regard to all of the relevant factors, at the time of Len’s death in April 2014 Len did not owe a moral duty to make further provision for Lucas. Len knew that in 2009, a settlement had been reached which involved a substantial sum of money being set aside for Lucas’ benefit. While there is no evidence as to what financial contributions Gary had been making to Lucas’ upbringing prior to his death, Len knew that Angela had been raising Lucas since that time on her own. While Angela had been diagnosed with her illness in 2011, there is no evidence that she communicated with any of the Missen family about her health problems: indeed, it seems to be common ground that she rarely if ever spoke with any members of the Missen family apart from Gary after their separation in 2002, or, at the very latest, at Gary’s 50th birthday party in 2003. So, at the time of his death, Len could not have reasonably been expected to know about Angela’s difficulties. I cannot speculate that, even if Angela’s evidence that Len and Lucas spoke regularly is correct, that Lucas would have informed Len about his mother’s ill health.
The position may well have been different had Lucas not received a substantial sum from Gary’s estate, which has increased over time, or if Angela’s financial position had been that it was necessary for the funds in Court to have been severely depleted. However, through the efforts of both Angela and Mary, they have not been, and there are certainly sufficient funds available to finance the remaining period of secondary schooling, assist with tertiary education, and provide Lucas with a good start in life.
On the other hand, it could not be said that Leigh is completely without need. He has no substantial cash resources, and is dependent upon farming for an income. He has negligible superannuation, and while Karen does have substantial superannuation, that is her money, not Leigh’s, and one can never confidently predict what might happen in the future. Karen herself is dependent upon Leigh for support, having left paid employment in 2013 to provide greater assistance to Len in his last year of life. While she may be able to resume employment if she wished, the difficulties faced by mature workers in re-entering the workforce are well publicised. Finally, while no doubt Leigh will wish to continue farming as long as he can, his ophthalmological condition may prevent him from doing so, or at least doing so without paid employees or additional paid employees. This is not a case where the Court should be tempted to impose a moral duty upon a testator simply because the named beneficiary has substantial assets of his own, or because the size of the estate is reasonably substantial.
While each application must be assessed and determined on its own facts, a review of some of the decisions in cases involving claims by grandchildren do give some guidance as to what circumstances might give rise to an obligation on the part of a grandparent to make provision for his or her grandchildren.
The current application can be distinguished from Re Davies[26] in a number of ways. First, in Re Davies, the plaintiffs’ father, who predeceased his mother, had made representations to his family that they would be protected financially by their grandmother’s will before taking his own life, his own estate was modest, and the plaintiffs had special needs. In the current case, Gary provided for Lucas through his estate. Further, the beneficiary of the estate in Re Davies was in comfortable financial circumstances, was in good health, and had no dependents. While it cannot be said that Leigh’s financial position is poor, he does have a dependent spouse, a disabling health condition, and farming is a notoriously precarious enterprise.
[26]Re Davies [37].
Another comparison is to be found in Petrucci v Fields,[27] where Mandie J ordered that provision be made for the widow and children of the deceased’s son, who had predeceased the deceased. Both the deceased’s son and his wife had cared for the deceased for many years prior to the son’s death, after which the deceased abruptly cut off contact with his son’s widow and children. The son left no estate, and his widow’s and childrens’ financial circumstances were quite precarious. There was no evidence that the beneficiaries of the deceased were in any particular financial need. In these circumstances, Mandie J held as follows:
In the present case, the plaintiff grandchildren had a normal relationship with the deceased until the death of their father, but not a special or dependent relationship. They do have, I think, a clear need for some provision for their long‑term security. They will probably not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and contingencies of life for themselves. In addition, as I have said, they have lost any possibility of immediate or continuing support from their father. In that context, according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provision for them.
I consider that a wise and just testator would not have been bound to make any provision for the immediate needs of the grandchildren. However, I think that a wise and just testator would, looking at the family line constituted by the first plaintiff and her adult children, and considering the loss of their husband and father, conclude that he had a responsibility in the particular circumstances to make some provision for the grandchildren’s future needs.[28]
[27][2004] VSC 425.
[28]Ibid [65]-[66].
Again, the decision to make an order for provision from a grandparent’s estate was based upon the parlous financial position of the applicants, in circumstances where the deceased son and his wife had made an extraordinary contribution to the welfare of the deceased, and the deceased’s failure to make provision for the son’s widow was described as ‘callous’. In the current case, Lucas’ financial position is not parlous: Lucas is still young, but he will reach his legal majority in less than three years. He is supported by his mother and grandmother, and, as noted by counsel for Leigh and Karen, will have access to HECS to support his tertiary studies. Indeed, were I to accede to the application made on his behalf, that he receive thirty per cent of Len’s estate, he would, upon achieving legal adulthood, have a fund of approximately $1 million, an extraordinary sum of money for a young man by current community standards.
In conclusion, having regard to the circumstances of the parties, the factors enumerated in the Act, the relevant considerations identified in the authorities, and comparing the circumstances of the parties in this application with the circumstances where grandchildren have made successful applications, it would be inconsistent with prevailing community standards to order provision for Lucas from Len’s estate. Indeed, the proposition that Len ought to have made over a substantial proportion of his estate to Lucas, in preference to his remaining grandchildren and to the detriment of his faithful only surviving son, might offend community standards, particularly when the young person concerned is well supported by his family and has a substantial nest egg of his own.
If I am held to be wrong, and it were to be found that Len did owe a moral duty to provide further support to Lucas, I would not have acceded to the submissions of counsel for Lucas to the effect that it would be appropriate to take a broad brush approach, and award Lucas a thirty per cent share of the estate. If I were to adopt a broad brush approach, I might have awarded Lucas a maximum of twenty per cent of the estate, having regard to Lucas’ position as one of five grandchildren. However, had I found a moral duty existed, it would have more likely that I would have awarded Lucas the sum of $100,000, being the likely cost of funding the fees and incidental expenses of Lucas’ last three years at Xavier. While there is no evidence about whether Leigh and Karen’s children were educated in the public or private system, there is evidence that both Len and Gary were educated at Wesley College. Further, at the time of Len’s death, Lucas was already enrolled at Xavier, and the sole distinguishing feature between Lucas and Len’s other grandchildren is that, at the time of trial, Lucas is the only grandchild yet to complete his secondary education. Lucas’ position can thus be distinguished from the position of the plaintiffs in MacEwan-Shaw v Shaw,[29] where Dodds‑Streeton J (as she then was) stated as follows:
The familial generosity of a grandparent should not in the absence of other relevant circumstances be recognised as the basis of a direct responsibility to make further testamentary provision for the private education of a grandchild who is in parental care particularly when the grandparents chosen beneficiary is his or her surviving spouse of longstanding. The fact that a child’s parents are of modest means whilst the estate could satisfy the claim without significant adverse impact on the chosen beneficiary will not without more found a grandparental responsibility to provide maintenance and support.
[29](2003) 11 VR 95 [234].
However, in that case, the plaintiffs were not actually attending the school for which funding was sought, while as at the time of trial, Lucas is well established at Xavier, and the uncontested evidence of Angela is that Xavier provides Lucas, who is after all without a father, unlike the plaintiffs in MacEwan-Shaw v Shaw, an environment with strong pastoral support. Furthermore, his school fees are funded by his grandmother, not Angela. However, it is not necessary to deal with the nature or extent of any provision at any great length, given the finding I have made about the absence of any moral obligation on Len’s part to make further provision for Lucas.
I shall dismiss the application, and hear further from counsel on the question of costs.
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