Mahfoud v Accaoui
[2013] VCC 2160
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-11-04940
| HAIFA MAHFOUD | Plaintiff |
| v | |
| MICHEL ACCAOUI (as Executor of the Estate of GEORGE MICHAEL AKAWI) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4 and 5 December 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Mahfoud v Accaoui | |
| MEDIUM NEUTRAL CITATION: | [2012] VCC 2160 | |
REASONS FOR JUDGMENT
---
Subject: ADMINISTRATION AND PROBATE
Catchwords: Testator’s family maintenance – claim by testator’s niece by marriage
Legislation Cited: Part IV of the Administration and Probate Act 1958
Cases Cited: Re the Will of G G Sitch (dec’d) [2005] VSC 308 – Boyd v State Trustees Ltd [2008] VSC 18 – Schmidt v Watkins [2002] VSC 273 – Webb & Ors v Ryan & Anor [2012] VSC 377 – Iwasivka v State Trustees Ltd [2005] VSC 323 – McLeod v Troy & Ors [2002] VSC 187 – Keil v Cook & Anor [2008] VSC 53 – Napolitano v State Trustees Ltd [2012] VSCA 345
Judgment: Application dismissed – no order as to costs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E Konstantinou | Dellios West & Co |
| For the Defendant | Mr A J Verspaandonk | Moores Legal |
HIS HONOUR:
1 This application is by the plaintiff under Part IV of the Administration and Probate Act 1958, the former niece-in-law or niece by marriage of the deceased.
2 The plaintiff had never met the deceased until she arrived in Australia in 2001 at the age of forty-two. Prior to arriving in Australia, the deceased's wife, that is, the plaintiff's aunt, hereinafter referred to as “Auntie Souad”, had, to the age of forty-two, lived in the same household as her brother, who was in fact the plaintiff's father.
3 Auntie Souad came herself to Australia in 1972 and at the time, the plaintiff, still living in Lebanon, was aged thirteen.
4 Thereafter, there appears, from the material, to have been regular contact between Auntie Souad and her brother, but there is no evidence of any contact by Auntie Souad with the plaintiff personally in the twenty-nine years from 1972 through to 2001.
5 Upon arrival in Australia in 2001, the plaintiff spent the first seven months living between the homes of her two brothers, who were already in Australia, and Auntie Souad's home.
6 In May 2002, the plaintiff married Alexander Mahfoud. As the plaintiff still did not have a job, and her husband was not working on a consistent basis, Auntie Souad and the deceased would help them out with money: being funds to purchase groceries, and the deceased himself, according to the plaintiff's affidavit, used to drive her to various destinations.
7 Both before her marriage and after, the plaintiff would perform housework and other odd jobs for the deceased and Auntie Souad and, as she says, in particular at paragraph 30 of Exhibit A, she performed such work as a “way of saying thank you for their love and support” provided to the plaintiff since she had arrived in Australia by her aunt and uncle.
8 Until 2007-2008, this situation essentially was maintained, whereby Auntie Souad and her husband lived independently, cared for themselves and at times apparently the plaintiff would go to the home and assist or, perhaps I should say, try to assist.
9 In 2007-2008, Auntie Souad's health, which had been problematical, worsened and it was necessary for the plaintiff to attend, according to her affidavit, to do more work than she was doing beforehand, Auntie Souad now being apparently beyond such work. Indeed, the plaintiff alleges at that time that, as a result of the work carried out, she in fact hurt her back (see paragraph 35 of Exhibit A).
10 Looking at all the material, it is difficult to assess the degree or the standard of such services allegedly provided by the plaintiff or their consequences. It would appear that throughout that period, and for some considerable period prior to 2007-2008, the deceased and Auntie Souad lived in their home in what might politely be described as hoarders. Auntie Souad in particular, seemed to have a passion for weekend markets.
11 The house apparently was full of such material to a degree that the house was totally cluttered and they lived in an environment not only of total clutter, but in circumstances where there was animal and human faeces present and observable to persons attending at the home. It is difficult in those circumstances to understand what work was done by the plaintiff and indeed, the difficulty the plaintiff would have had in trying to assist her elderly relatives.
12 At paragraph 36 of Exhibit A, the plaintiff attests that the first time she was aware that her aunt had been admitted to the Bundoora Extended Care facility was when she was advised by the deceased of that in mid-2008.
13 The full circumstances of such admission can be gleaned from a report of a social worker, Bruno Chene, of 9 September 2008, prepared for a hearing before the Guardianship and Administration Board, exhibited to the affidavit of the defendant sworn on 3 July 2012, being the material exhibited at Exhibit 2C. It appears that Auntie Souad was admitted to the Aged Persons Mental Health Unit, NorthWestern Medical Health, due to “"the appalling state of the home and her mental state, predominantly at that time of paranoia”.
14 There is reference to a visit by the social worker in May 2008 to the home, that is, long before the plaintiff became aware that Auntie Souad had been admitted. This social worker visiting the home described it, consistent with the manner in which I have described it, as being in an appalling state, and that within it, there were risks of “fire, falls and health”.
15 Consequently, there was apparently a meeting between the care, or health, authorities and the plaintiff whereby she undertook to try to clean the house to such an extent as to remedy the issues that were of concern to the authorities. However, it soon proved that she was unsuccessful in doing so.
16 There was an application for appointment of an administrator and also a guardian following the admission of Aunt Souad as an acute psychiatric inpatient on 17 July 2008.
17 On 8 October 2008, the Public Advocate was appointed as limited guardian and the State Trustee as administrator. It is notable that in the original report of Mr Chene of 9 September 2008, the deceased, apparently on a number of occasions prior to the date of that report, had expressed his lack of trust in the plaintiff and her husband and his suspicion of their motives. Thereafter, this lack of trust apparently progressed for, when at the review of the guardianship order, such review being held on 22 November, there was an application for guardianship made both by the deceased and separately by the plaintiff and her husband.
18 The plaintiff said in evidence that from that time, the defendant turned his back upon her. Indeed, in her evidence, the plaintiff said that once Auntie Souad was admitted to Bundoora, the deceased had refused her access to the home and had refused to talk to her on the phone. She also admitted that at no stage did she ever advise the deceased prior to the application being lodged that she was making such an application for guardianship before the board.
19 Those circumstances, it seems to me, are consistent with the attitude expressed to Mr Chene by the deceased, and reported on by Mr Chene, as to the deceased's feelings about the plaintiff and her husband.
20 Between the hearings, that is between October and November 2008, it would appear that the plaintiff took Auntie Souad on a number of afternoon trips and had asked the authorities for her Auntie to be admitted to a culturally suitable aged care facility. However, given Auntie Souad's high-level aged care assessment, her dementia, and perhaps more importantly, her behavioural problems, this was deemed not to be possible.
21 Thereafter, it would appear that the plaintiff had Auntie Souad at her home for Christmas 2008 and for a period in Easter 2009. However, the guardian did not allow Auntie Souad to return to the deceased’s home for overnight stays as he wanted, nor did the guardian allow a two-week trial home placement, which had also been requested by the deceased, no doubt because of the continued condition of the premises. It does not take much imagination to conclude that these particular circumstances would not have enamoured the plaintiff to the deceased.
22 Auntie Souad was finally admitted to the Hilltop Aged Care facility on 11 June 2009. The plaintiff attests (see paragraph 40 of Exhibit A) that her and her husband visited her Auntie daily, assisted in interpretation between her and the nurses, especially owing to the difficulties that her aunt’s behaviour had created and did create at that time for the nurses.
23 Unfortunately Auntie Souad’s health never recovered, she died in the Austin Hospital on 4 October 2010.
24 There was some criticism contained, it seemed to me, in the plaintiff’s affidavit and indeed in her oral evidence, relating to the deceased’s attitude to his wife. It seems to me that it is not unnatural for aged persons, suffering illness themselves, to not fully appreciate a loved partner’s difficulties, especially when caused by paranoia and dementia. Indeed, the fact that the guardian did not permit the wife back into the home should not, it seems to me, be seen as any criticism of the deceased personally, nor of his attitude to his wife.
25 The materials do not support this subtle, or less than subtle in the plaintiff’s oral evidence, suggestion of the plaintiff. The deceased seems to have lived together with his wife for many, many years. They had worked hard together. The deceased had apparently driven taxis and Auntie Souad had worked in factories and they jointly conducted milk bars. It would appear that from very humble beginnings, they had worked very hard together and accumulated funds to purchase their home in 1997, which would, as best I understand, be approximately after twenty-five years of marriage.
26 I find that steps taken in the interests of Auntie Souad by the guardian, given the state of the house, should not be seen as a direct criticism of the deceased or in any way an indication of his lack of care or love for her.
27 The defendant (see paragraph 25 of Exhibit 2) submitted that indeed against such suggestion, the deceased was in fact devoted to his wife. It is hard to get a precise feel about this. However, I find that the emails exhibited in this case, in particular at Court book 171, and further at 172, are far more consistent with what the defendant says. It is noted in the email at 172, that the deceased said about his wife, after her death, “The light of my eyes has been turned off. Pray for her.”
28 The plaintiff further alleges that the deceased felt that he had been abandoned by his own family once he had left Lebanon for Australia (see paragraph 49 of Exhibit A). Further, the plaintiff says, that the deceased told her this, that is, that he had actually specifically said to her that he felt that he had been abandoned by his own family.
29 My own analysis of the emails between the family of the deceased (Exhibit 2F), the photographs (Exhibit 2E), and the photographs disclosed in the bedroom of the deceased (Exhibit 5), indicate quite the opposite. All of such exhibits, I find, are consistent with the evidence of the defendant who, in March 2011, that is, four weeks prior to the deceased’s death, the deceased referred to, in an email, as “your uncle who adores you” (see page 55, Exhibit 2A).
30 Further, the defendant, in evidence, described the visit to Lebanon of the deceased in 1993-1994, which was the first and only time that he had met his uncle prior to his death and being a “very exceptional experience”.
31 Further, in January 2006, the deceased and Auntie Souad, in communications between them and the plaintiff's father, Elias, at what would appear to be Elias’ anniversary, not only wished him a happy anniversary but referred to him specifically was “my very, very dear brother Elias”.
32 When such photographs, the emails with the terms of endearment that I have referred to were put to the plaintiff in cross‑examination, she remarked that “such surprised her”.
33 I consider that the disposition made by the deceased in his will was indeed consistent with his intent to leave his estate to his family as he saw it. During his life, he was clearly keen not only for the defendant to come to Australia but for the defendant and his father to come to Australia to join him (see page 55, Exhibit 2A).
34 Having perused all of the materials and considered all of Counsels’ submissions, I find no basis for the allegation that the deceased and/or Auntie Souad treated the plaintiff as, in effect, their daughter, albeit that they were childless. This is not, of course, to deny that they may have referred to her in affectionate terms. One would expect that, given their generosity to her when she arrived in Australia, and that they were her actual aunt and uncle.
35 As defendant’s counsel pointed out, the plaintiff still had, in Lebanon, her own parents who were alive, to whom she has attested that she was very close, indeed was and still is financially supporting.
36 In looking at the relationship between the plaintiff and her aunt and aunt and uncle, I find such simply to be that of members of the family helping out another member who had recently migrated to Australia. I find that both her aunt and uncle did what you would expect of family, over a limited period of seven months before she got married and thereafter, when the plaintiff lived totally independently, such relationship continued. Such relationship was of aunt, uncle and niece.
37 Whatever the relationship with the deceased was, it was completely shattered in mid-2008 by the actions taken by the plaintiff and her husband insofar as seeking to obtain guardianship of Auntie Souad. It would appear that the reaction of the deceased to such, exacerbated feelings that he had already expressed to the social workers about his suspicions about his wife’s niece and her husband. It would appear, certainly from the report of the social worker, that he had these feelings before such application was made by the plaintiff and her husband.
38 Consistent with the view and reaction by the deceased, is the evidence of the plaintiff, who said that at or about the time of her auntie’s death, the deceased had in fact verbally abused her in public at the Austin Hospital. Hence, the duration of the time of any relationship with the deceased, was a period of some seven years.
39 As has been determined in Re the Will of G G Sitch (dec’d) [2005] VSC 308, at [104], the first question for the Court is one of jurisdiction, upon which the plaintiff, of course, has the burden. Such matter has to be determined as at the date of the death of the deceased, and the question to be asked is whether the deceased had a responsibility to make adequate provision for the proper maintenance and support of the plaintiff, and also the comments of Robson J in Boyd v State Trustees Ltd [2008] VSC 18, at [44] to [45].
40 To answer this question, this Court must have regard to all the facts in this case and to the matters specifically set out in the Act from ss91(4)(e) through to (p). The test remains one of whether “…a wise and just testator would have thought his moral duty [was] to make in the interests of the claimant” (see Boyd v State Trustees Ltd (supra), at [45]).
41 It is, of course, important as to a Court's approach, and I need to remind myself, as was also pointed out by Gillard J in Sitch (supra), at [68]:
“… the Court must not overlook that it is not invested with a discretion to remake a testator's will upon some principle of fairness.”
42 Further, at [69], it was stated that:
“The Court must not overlook the right of a testator to make a will of his choosing. In many cases a testator is in a far better position than a Court to know and understand the claims upon his or her bounty.”
43 Of course a person does not have to be within a deceased’s immediate family to establish a moral claim. In this regard in particular, I have considered the remarks in Schmidt v Watkins [2002] VSC 273, which was a de facto partner case; Webb & Ors v Ryan & Anor [2012] VSC 377, and the interpretation of the words “any family or other relationship” as detailed in s90(4)(e), and the claim by nieces by marriage in Iwasivka v State Trustees Ltd [2005] VSC 323, and analogous applications made under s99 referred to by counsel in McLeod v Troy & Ors [2002] VSC 187 and Keil v Cook & Anor [2008] VSC 53.
44 I was assisted by both counsels’ submissions in regard to the law in this matter. I have had the benefit of written submissions of law from Mr Verspaandonk and two volumes of relevant authorities for which I thank him. Ms Konstantinou also provided me with a written submission and spoke to each of those authorities and did not in any way indicate that the general tenor of the authorities was in any way correct.
45 Both counsel, as I have said, have made written submissions as to the operation of s91(4)(c) through to (o), insofar as such impacted upon the facts of this case, and counsel on behalf of the plaintiff made submissions, detailed at [43] to [51] as to the operation of the provision contained in s91(4)(p), and the defendant’s counsel did likewise in writing.
46 I intend to exhibit each of those submissions, that is, the two submissions of fact and the submission of law and I will give those the appropriate references simply if they need to be referred to in due course. I say again that I have re-read both of those and taken them both into account.
47 As to the determination required under ss(4)(a), in particular by way of reference to subparagraph (e), at the time of the death of the deceased, I find that there was in fact no relationship between the plaintiff and the deceased. Prior to Auntie Souad being put into Bundoora, and the subsequent guardianship relationship, there was, as I have found, a relationship between them of niece and uncle by marriage, or by law.
48 In the circumstances, as to the suggestion that prior to that time she was treated as a de facto daughter, I find that the plaintiff has not proved that allegation.
49 As to subparagraph (f), I find that the circumstances do not establish any obligation owed to the applicant by the deceased. In that regard, as to the seven-year relationship prior to 2008, I refer to Schmidt v Watkins [2002] VSC 273, and adopt what was there said about a non‑related person, albeit that the plaintiff here was a niece by marriage or niece-in-law. In that case, the following was said:
“… friends, neighbours ... 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 … .”
50 I find that at the time of the deceased’s death, the plaintiff/applicant was effectively an estranged niece, whether it be by law or by marriage, and had been so for a period of some three years.
51 As to subparagraph (g), such does not have much impact on this first question, except that I remark that the estate in this case is relatively small. The agreed net worth was a figure of some $389,028. Essentially, such estate comprises the house which was originally bought by Auntie Souad and the deceased in 1997, and in which the defendant indicates in the materials and his evidence that he wishes to live.
52 Prima facie, equally in regard to this first question, paragraphs (h), (i) and (j) are not particularly relevant, although I accept that insofar as subparagraph (h) is concerned, that prima facie, the plaintiff's financial position constitutes financial need. As I say, that is not directly related to the first question of jurisdiction.
53 As to subparagraph (k), I find that while Auntie Souad was still living at home, the plaintiff certainly contributed to the welfare of the deceased, Auntie Souad, and their family generally. She apparently, she said, assisted them in cleaning and cooking. However, again, as she had attested, such was in response to the kindness shown to her by her aunt and uncle in the seven months after she arrived in Australia, being I find what she regarded as a familial obligation. Such actions by the plaintiff, indeed her continued assistance to her Auntie when she was admitted to hospital, albeit at a time when she was now estranged from the deceased, even in that broad sense of her assistance to the family, I do not find in any way created any obligation, via her assistance to her Auntie, upon the deceased to the plaintiff in this case (see in this regard Napolitano v State Trustees Ltd [2012] VSCA 345, at [33]).
54 Coming to paragraph (l), the plaintiff clearly had been given financial support by the deceased and his wife, Auntie Souad, soon after she arrived in Australia, albeit that that was limited in degree and duration. Indeed, it was that support which she attested to, both in her affidavit and in evidence, that obligated her to provide by way of thank you to her aunt and uncle the services which I have referred to in discussing subparagraph (k).
55 There is no mention of the matters referred to in subparagraph (m) at any time. Subparagraph (n) is not really relevant as there was no evidence in regard to any liability in this matter. Subparagraph (o) has really nothing relevant to the issue of the first question, except for the general matters discussed, which I have discussed previously as to an analysis of the relationship.
56 Analysing therefore all the evidence, all the findings and, in particular, the provisions that I am required to look at and having given the matter some consideration, I have found that it is appropriate in all the circumstances to accept the submission of the defendant in this case that there is no jurisdiction disclosed for this application. I would therefore dismiss the application on that basis.
57 There is no order as to costs, and it is noted that the defendant is not to be responsible for any transcript costs.
----
0
7
0