Major v Dendakos

[2010] VCC 1029

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL

FAMILY PROPERTY DIVISION

Case No. CI-08-01306

IN THE MATTER OF Part IV of the Administration and Probate Act 1958

AND IN THE MATTER of the Estate of Edwin Briggs

KAYLA LEIGH MAJOR	Plaintiff
v
ALANA JANE DENDAKOS	Defendant
(who is sued as the Executor of the Will of EDWIN BRIGGS, deceased)

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2010
DATE OF JUDGMENT:	23 July 2010
CASE MAY BE CITED AS:	Major v Dendakos
MEDIUM NEUTRAL CITATION:	[2010] VCC 1029
[First Revision 5 August 2010]

REASONS FOR JUDGMENT

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Catchwords: TESTATOR'S FAMILY MAINTENANCE – plaintiff not the natural child of the deceased – whether the deceased assumed responsibility for the plaintiff as if she were his daughter – no provision made in the Will of the deceased for the plaintiff – whether the deceased had responsibility to make provision out of his estate for the proper maintenance and support of the plaintiff – proper provision: Administration and Probate Act 1958, section 91(1), (3) and (4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Coleman (solicitor)	Coleman Lawyers
For the Defendant	No appearance
HIS HONOUR:

Introduction

1          Before the Court is an Originating Motion filed 4 April 2008 by which the plaintiff seeks an order for provision for her maintenance and support out of the estate of the deceased.

2          Mr Coleman appeared for the plaintiff. There was no appearance for the defendant.

3          I am satisfied that the plaintiff served the defendant with the Originating Motion and the affidavit sworn by the plaintiff on 3 April 2008. The defendant filed an appearance on 14 October 2009, but thereafter took no step to defend the proceeding. I am satisfied, upon the submissions made by Mr Coleman, that the defendant is aware of the date of trial.

4          The plaintiff tendered the following evidence:

[1]             I gave the plaintiff leave to rely upon a further affidavit. It said no more than that her circumstances as described in her earlier affidavit had not changed. A sworn copy was filed subsequently.

• her affidavit sworn 3 April 2008: Exhibit A

• her further affidavit unsworn: Exhibit B[1]

• the affidavit of service sworn 21 May 2009: Exhibit B.

The Plaintiff's Evidence

5          Considering that the defendant chose not to appear to contest the proceeding, I consider it unnecessary to rehearse all of the evidence contained in the plaintiff’s affidavits.

6          The following is a summary of the relevant portions of the evidence of the plaintiff contained in her affidavits:

• She was born on 28 January 1962. She is now forty-eight years of age. She is single. Her only source of income is a Disability Pension.

• At nine months of age, she was left by her biological mother with the deceased and his wife. The deceased’s wife, Dorothy Margaret Briggs, died on 1 July 2003. The plaintiff lived with the deceased and his wife until she was twenty-one years of age. The deceased and his wife maintained the plaintiff in all respects while she was resident in their home.

• At twenty-one years of age, the plaintiff moved out of the deceased’s home. However, from time to time she returned to stay at his home.

• The deceased and his wife sent the plaintiff to the same school as the defendant. The defendant is their natural child. They treated her as their daughter. The plaintiff called the deceased and his wife "mum and dad".

• The plaintiff continued to see the deceased and his wife up until their death, and otherwise communicated with them by telephone and letter. She had a good relationship with both of them. She saw the deceased two days before he died.

• The plaintiff suffered injury in a transport accident in 2005. She suffered injuries to her spine and ribs. She has not worked since that time. She survives on a Disability Pension. She has no real estate or other significant assets. She presently resides in Bendigo.

• The deceased died on 19 August 2007.

The Estate of the Deceased

7          The plaintiff exhibited the inventory of assets and liabilities which were prepared by the defendant without legal assistance.[2] It discloses that the deceased’s estate comprised:

[2]             Exhibit "KM3" to the plaintiff’s first affidavit

• real estate valued at $480,000.

• personal estate valued at $1500.

• liabilities amounting to $9,814.47.

8          The net value of the estate of the deceased amounts to $471,695.53.

9          By his Will made 24 July 2003,[3] the deceased appointed the defendant his executrix and trustee of his estate, and left the whole of his estate to the defendant absolutely.

[3]             Exhibit "KM1" to the plaintiff's first affidavit

The Plaintiff's Claim

10        I accept the plaintiff’s evidence that while she was not the natural child of the deceased and his wife, that she was treated as such from the time she commenced living with them full time when nine months of age.

11        I accept that the deceased and his wife assumed the primary responsibility for the maintenance and support of the plaintiff. I accept that the peculiar emotional and social dependency existed as between the plaintiff and the deceased and his wife consistent with that of parents and child.[4]

[4]             MacEwan Shaw v Shaw (2003) 11 VR 95 at 226

12        Therefore, the conclusion I have reached is that the plaintiff has established that she is a person for whom the deceased had responsibility to make provision out of his estate for her proper maintenance and support.[5]

[5] Section 91 of the Administration and Probate Act 1958 ("the Act")

13        I have no jurisdiction to interfere with the terms of the Will of the deceased unless I am satisfied, on the balance of probabilities, that the fulfilment of the terms of the Will of the deceased would amount to a breach by him of his moral duty to the plaintiff.

14        In failing to make such provision, I find that the deceased was in breach of his moral obligation owed to the plaintiff to make provision which a wise and just testator would have thought it his moral duty to make in the interests of the plaintiff.[6]

[6]             Blair v Blair (2004) 10 VR 69, at 76 and 84

15        I have no hesitation in concluding that the plaintiff is a person in need. She is in a parlous financial situation. She has no real estate nor assets of any significance. She is totally reliant upon Commonwealth benefits for her financial maintenance and support. I accept that she has little or no prospect of seeing that situation improving.

16 Section 91(4)(e)-(p) refers to matters which the Court must have regard to when exercising the discretion in favour of a claimant:

• paragraph (e) - the plaintiff treated the deceased and his wife as her parents, and they in turn treated her as their child.

• paragraph (f) - I accept that the deceased had an obligation and responsibility to the plaintiff for the reasons set out above.

• paragraph (g) - the estate is of a relatively modest size. It is not subject to any charges or liabilities.

• paragraph (h) - the financial resources of the plaintiff are undoubtedly modest. As far as the evidence goes, it would appear that the defendant is married with children and has income and assets.

• paragraph (i) - the plaintiff continues to suffer from symptoms of her injuries. She is disabled to the extent that she is in receipt of a Disability Pension.

• paragraph (j) - the applicant is advancing into middle age. She is forty- eight years of age.

• paragraph (k) - I accept that the plaintiff had a relationship with the

deceased which saw her visit him when he became infirm for the purpose

of undertaking domestic duties for his benefit.

• paragraph (l) - there is no evidence that the deceased provided any benefits to the plaintiff during his lifetime save for behaving as if he was her father.

• paragraph (m) - I accept the plaintiff’s evidence that up until she was twenty-one years of age, the deceased and his wife maintained her financially as if she was their daughter.

• paragraph (n) - there is no other person with a liability to maintain the plaintiff.

• paragraph (o) - there are no factors in this proceeding which would disentitle the plaintiff by reason of any aspect of her character or conduct generally, or specifically in relation to the deceased.

• Paragraph (p) - there were no other matters which are relevant.

Conclusion

17        In remedying the breach of the deceased's moral duty to make adequate provision for the proper maintenance and support of the plaintiff, I am required to make provision for the plaintiff which is sufficient to provide for her proper maintenance and support, having regard to the value of the estate and the interests of the defendant as the deceased's daughter and sole beneficiary.

18        I consider that the deceased should have considered the fact that the plaintiff considered him to be her father and relied upon him for maintenance and support as a daughter ordinarily would; that plaintiff's physical health and her capacity to return to the workforce as requiring provision for her maintenance and support, and on that basis, such provision should be made to her.

19        I consider that the deceased should have considered making such provision to enable be plaintiff to live independently. I consider that a sum of $200,000 would achieve that end.

20        Therefore, I propose to make an order in favour of the plaintiff for the sum of $200,000 together with her solicitor/client costs to be taxed on scale "D" of the County Court scale of costs, and when taxed, to be paid out of the estate.

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