Marc Dominic Davison v Peter Ruston Kempson (As Administrator of the Estate of Genevieve Davison, Deceased) and Ors(according to the attached schedule)
[2018] VSCA 51
•9 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0053
| MARC DOMINIC DAVISON | Applicant |
| V | |
| PETER RUSTON KEMPSON (AS ADMINISTRATOR OF THE ESTATE OF GENEVIEVE DAVISON, DECEASED) & ORS (according to the attached schedule) | Respondents |
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| JUDGES: | TATE, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 February 2018 |
| DATE OF JUDGMENT: | 9 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 51 |
| JUDGMENT APPEALED FROM: | [2017] VSC 173 (Zammit J) |
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TESTATOR’S FAMILY MAINTENANCE – Appeal – Application for further provision – Where application brought by adult son of deceased – Where deceased died intestate – Where further provision ordered – Where adult son contends further provision inadequate for proper maintenance and support – Specific error alleged – Nature of review by appellate court – Whether trial judge failed to exercise discretion properly – Appeal allowed – Further provision ordered – Administration and Probate Act 1958 s 91(4).
TESTATOR’S FAMILY MAINTENANCE – Application for further provision – Where application brought by adult son of deceased – Where adult son dependent upon deceased – Whether deceased had obligation to fulfil ongoing dependency after death – Taylor v Farrugia [2009] NSWSC 801 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Wilkinson | Marshalls & Dent Lawyers |
| For the Second and Third Respondents | Mr P G Nash QC with Mr J Lavery | Access Law |
TATE JA
SANTAMARIA JA
BEACH JA:
Introduction
The deceased, Genevieve Davison, died intestate on 13 April 2014. Her surviving children are the applicant, Marc Davison, and his younger siblings, the second respondent, Remy Davison, and the third respondent, Pascale Davison. The administrator of the deceased’s estate is the first respondent, Peter Kempson.
On 11 May 2016, the applicant made a claim under pt IV of the Administration and Probate Act 1958 (‘the Act’) for further provision out of the deceased’s estate (‘the pt IV proceeding’). The principal asset of the estate was a property at 1469 High Street, Glen Iris (‘the property’), which was sold in March 2017 for $1,700,000.
On 20 April 2017, the trial judge ordered, among other things, that further provision be made to the applicant by way of a legacy in the sum of $125,000 and that the remainder of the deceased’s estate be divided equally between the applicant, the second respondent and the third respondent.
The applicant has applied for leave to appeal against that order. In summary, he contends that the trial judge failed to take into account several relevant considerations. In doing so, says the applicant, the trial judge’s discretion miscarried, causing her to order the applicant provision below that which was adequate for his proper maintenance and support.
For the reasons that follow, we would grant leave to appeal on the second proposed ground of appeal and allow the appeal. We would set aside the trial judge’s award of further provision and instead order that the applicant be awarded further provision in the sum of $250,000, with the balance of the estate again being divided equally among the applicant, the second respondent and the third respondent.
Summary of factual background
In 1994, the applicant moved into the property to live with the deceased and to assist her with her care. In 1999, the deceased suffered a stroke. In 2000, she was declared legally blind.
From 2000, the applicant became the deceased’s carer. He received a carer’s pension and a carer’s supplement. The applicant deposited the carer’s pension into the deceased’s bank account for her to use. He lived off the carer’s supplement, which was around $80 to $120 per fortnight. At this time, neither of the deceased’s other children was in a position to care for her.
The deceased died intestate in April 2014. Following her death, the applicant continued to live in the property. The property is the principal asset of the estate.
On 15 March 2015, the first respondent applied for a limited grant of administration of the deceased’s estate (‘the limited grant proceeding’). The matter came before McMillan J.
On 17 March 2015, the first respondent was appointed as the independent administrator ad colligenda bona of the deceased’s estate.[1] Among other things, the grant was limited to cleaning up the property in preparation for its sale by public auction and engaging certain persons to assist with the clean-up and the sale process.
[1]The reasons of the trial judge and those of McMillan J refer to the date of appointment as 24 March 2015, which is the date of authentication of the orders appointing the first respondent as administrator. However, the orders are expressed to be made on 17 March 2015.
In 2015, the first respondent made two interim distributions to each of the applicant, the second respondent and the third respondent at their request. He paid $155,000 in total to each of them.[2]
[2]In an affidavit sworn in the limited grant proceeding on 25 August 2016, the applicant denied having received the whole of his interim distribution.
On 9 March 2016, the Registrar of Probates made a full grant of administration to the first respondent. In the meantime, the applicant had refused to vacate the property, and the property had not been sold.
On 11 May 2016, by originating motion, the applicant commenced the pt IV proceeding.
On 19 May 2016, the first respondent applied in the limited grant proceeding for an additional order to be made to the limited grant of administration that required the applicant to provide vacant possession of the property within 28 days of 19 May 2016.[3]
[3]Kempson v Davison [2016] VSC 366 [6]. Before McMillan J, the applicant contended (at [7]) that the application was procedurally flawed as it sought to add an order to the limited grant when a full grant had been made. McMillan J rejected this contention (at [8]–[10]) and granted the first respondent leave (at [11]) to make the application.
On 27 June 2016, McMillan J delivered a ruling in which she ordered that the applicant vacate the property within 30 days of the date of that order.[4]
[4]Ibid [18].
Relevantly, McMillan J found that the administration of the estate was being frustrated by the applicant’s position, which had forced the first respondent to seek the assistance of the Court.[5] Later in her ruling, she said:
[The applicant’s] stance in relation to the estate has been difficult from the beginning. It necessitated the appointment of [the first respondent] as an independent administrator for the estate. It is now more than two years since the death of the deceased and he continues to frustrate the orderly administration of the estate and cause additional costs to be incurred. [The applicant] should not be allowed to impede the orderly administration of the estate purely for his own benefit, without regard to the interests of his siblings and [the first respondent’s] duty to administer the estate. The continued occupation by [the applicant] of the property will impede the orderly process of the sale of the property.[6]
[5]Ibid [9].
[6]Ibid [17].
McMillan J also addressed a contention by the applicant that the sale of the property before the determination of the pt IV proceeding meant that he would not be able to claim a proprietary interest in the property or a right to purchase it:
The claim for a proprietary interest in the property seems ambitious in the context of a Part IV claim against [the applicant’s] two siblings who have financial need and such a claim would deny his siblings any entitlement to the property or substantially delay their entitlements. The claim to purchase the property seems unrealistic in the context of [the applicant’s] assertions that he has limited income and no assets.[7]
[7]Ibid [13].
McMillan J added that the applicant’s claim for provision ‘over and above his entitlement to a one third of the estate on an intestacy’ had all the hallmarks of an ambit claim and was consistent with his resistance to the first respondent completing the administration of the estate.[8] She said that it had no regard to the position of his two siblings and their entitlements under the intestacy provisions.[9]
[8]Ibid [16].
[9]Ibid.
On 25 July 2016, McMillan J made an order that the applicant vacate the property by 4:00 pm on 28 July 2016.
On 18 August 2016, McMillan J made a further order that the applicant vacate the property and provide vacant possession to the first respondent forthwith.
In an affidavit sworn in the limited grant proceeding on 5 October 2016, the first respondent deposed that he had deducted $64,354.06 from the estate for his legal costs and disbursements in relation to the limited grant proceeding and the pt IV proceeding. He said that he estimated ‘that approximately 51.5% of such costs directly related to the non-cooperation of [the applicant] and the taking of enforcement procedures against him’. He also said that he anticipated ‘the legal costs to resolve and finalise this matter’ to be between $5,000 and $10,000 and that he did not consider that there will be any tax payable by the estate.
On 18 November 2016, the Sherriff’s office had a warrant of possession in relation to the property. It is unclear whether the warrant had been issued.
By 28 November 2016, the applicant had vacated the property. The first respondent arranged for the sale of the property by public auction in February 2017. The property was passed in at auction.
The trial of the pt IV proceeding took place between 21 March 2017 and 23 March 2017. The first respondent did not take an active part in the trial. He has also not taken an active part in the present application for leave to appeal. The second respondent and the third respondent opposed, and continue to oppose, the claim for further provision. The parties agreed that the net value of the estate at the time of trial was approximately $1,453,400. The trial judge reserved the matter for judgment.
By letter dated 29 March 2017, the first respondent informed the Court that the property had been sold for $1,700,000 and that settlement was due to take place on 26 June 2017.
On 20 April 2017, the trial judge delivered judgment. Her reasons for judgment are examined below.
Following the delivery of judgment, counsel for the applicant made an oral application to the trial judge for an injunction restraining the first respondent from settling the sale of the property. He alleged that the first respondent had sold the property at an undervalue. The trial judge dismissed the oral application and made the following orders:
1.Further provision be made for the Plaintiff pursuant to Part IV of the Administration and Probate Act 1958 by distributing to him from the Estate of the deceased the sum of $125,000, and the remainder of the Estate to be divided equally between the Plaintiff, the Second Defendant and the Third Defendant.
2.The costs of the Plaintiff be paid out of the Estate as agreed and fixed at $65,000.
3.The costs of the First Defendant be paid out of the Estate on a standard basis in the absence of agreement.
4.The costs of the Second and Third Defendants be paid out of the Estate as agreed and fixed at $65,000.
5.The Plaintiffs oral application for an injunction is dismissed and the Plaintiff is ordered to pay the Second and Third Defendants’ costs of the application fixed in the sum of $2,000 to be paid out of the further provision ordered in paragraph 1 hereof.
6.The Intestate Estate otherwise be administered according to law.
7.An authenticated copy of this Order be attached to the Probate of the said Will.[10]
[10]It appears that this last order was made in error. No will is mentioned in the orders. At all events, the deceased died intestate.
The applicant has sought leave to appeal paragraph 1 of the orders. In particular, he seeks that paragraph 1 be set aside and that, in lieu thereof, he receive 65 per cent of the deceased’s net estate.
Statutory regime and applicable legal principles
In order to place into context the trial judge’s reasons and the applicant’s contentions, it is convenient to consider the statutory regime and the legal principles that governed the circumstances in which the trial judge could exercise her discretion under pt IV of the Act. The legal principles with respect to s 91 of the Act were not in dispute at trial. The trial judge applied s 91 as it stood before the amendments effected by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014.[11]
[11]Davison v Kempson [2017] VSC 173 [23]–[24] (‘Reasons’). These reasons refer to the provisions of the Act in force at 13 April 2014, being the date of death of the deceased.
Part IV of the Act confers upon a court a limited jurisdiction to order provision out of the estate of a deceased person.[12] At the relevant time,[13] a court had to decide three questions in an application for provision under s 91(4) of the Act:[14]
[12]Forsyth v Sinclair [2010] VSCA 147 [55] (Neave JA, with whom Redlich JA and Habersberger AJA agreed).
[13]See fn 11 above.
[14]Forsyth v Sinclair [2010] VSCA 147 [58].
(a) Did the deceased, at the date of her death, have responsibility to make provision for the applicant’s proper maintenance and support?[15]
(b) If so, did the distribution of the deceased’s estate by operation of the intestacy provisions of the Act make adequate provision for the applicant’s proper maintenance and support?[16]
(c) If not, applying the factors in s 91(4)(e)–(o) of the Act, what is the amount of provision, if any, that should be ordered?[17]
[15]Administration and Probate Act 1958 s 91(1). The basis of the jurisdiction traditionally has been described as the enforcement of moral obligations. See Collicoat v McMillan [1999] 3 VR 803, 815 [37], 818 [43] (Ormiston J); Blair v Blair (2004) 10 VR 69, 75–6 [13] (Chernov JA, with whom Nettle JA and Hansen AJA agreed); Baxter v Baxter [2014] VSC 377 [53] (McMillan J). In Blair v Blair (2004) 10 VR 69, Nettle JA said (at 84 [41]) that the test is one of whether and, if so, what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant. See also Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478–9 (Lord Romer).
[16]Administration and Probate Act 1958 s 91(3).
[17]Ibid s 91(1). See also s 91(4)(c)–(d).
The first two questions may be described as jurisdictional requirements; that is to say, before the discretion under pt IV of the Act was enlivened, an applicant must have established the matters raised in those questions.[18] In Singer v Berghouse,[19] which concerned an appeal of a decision made under the Family Provision Act 1982 (NSW), Mason CJ, Deane and McHugh JJ used the term ‘jurisdictional question’ to refer to the determination ‘whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life’.[20] It will be observed that the jurisdictional requirements under the Act, as they stood at the time, conformed in substance to the ‘jurisdictional question’ identified in the Family Provision Act.
[18]Blair v Blair (2004) 10 VR 69, 75–6 [11]–[13].
[19](1994) 181 CLR 201.
[20]Ibid 208–9.
The third question arose only after a court gave an affirmative answer to the first question and a negative answer to the second question. It was purely a question of quantum. It required the court to decide what provision ought to be made out of the deceased’s estate for the applicant.[21] Section 91(4) of the Act, so far as it was relevant, required the court to have regard to:
[21]Ibid 208.
(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.[22]
[22]Administration and Probate Act 1958 s 91(4). In Forsyth v Sinclair [2010] VSCA 147, Neave JA suggested (at [59]) that a court should have regard to s 91(4)(e)–(p) in answering each of the questions posed above.
It was common ground between the parties at trial that the deceased had a responsibility to make provision for the applicant.[23] At issue was whether, in all the circumstances, the distribution of the deceased’s estate by operation of the intestacy provisions of the Act made adequate provision for the applicant’s proper maintenance and support.[24]
[23]Reasons [25].
[24]Ibid [26].
The question of what is ‘adequate’ and ‘proper’ was considered in Pontifical Society for Propagation of Faith v Scales.[25] In that case, Dixon CJ said:
It has often been pointed out that very important words in the statute are ‘adequate provision for proper maintenance and support’ and that each of these words must be given its value. ‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should rewrite the law of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.[26]
[25](1962) 107 CLR 9.
[26]Ibid 19.
In deciding what is adequate and proper, the Court’s discretion, while broad, is to be exercised carefully and conservatively according to prevailing community perceptions of the provision that would be made by a wise and just testator.[27]
[27]McKenzie v Topp [2004] VSC 90 [63] (Nettle J), citing Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 146 (Gibbs J).
In order for a court to award provision, an applicant must have shown a ‘need’, which is a relative concept that has to be considered in the circumstances of each case.[28] It is not confined to economic need.[29] If circumstances permit, a testator should go beyond merely providing for the bare necessities of life.[30]
[28]MacEwan Shaw v Shaw [2003] VSC 318 [50] (Dodds-Streeton J), citing Hallam v Maxwell (Unreported, Supreme Court of Victoria, Hansen J, 13 November 1998); Re Anderson (1975) 11 SASR 276, 283 (Zelling J). See also Goodman v Windeyer (1980) 144 CLR 490, 497 (Gibbs J, with whom Stephen and Mason JJ agreed).
[29]Unger v Sanchez [2009] VSC 541 [78] (Kaye J); Semler v Todd [2015] VSC 567 [96] (Zammit J).
[30]Blore v Lang (1960) 104 CLR 124, 135. Fullagar and Menzies JJ said: ‘In such a case as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit.’
A parent need not treat his or her children equally.[31] Equality may set a limit to the order to be made, such as where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same.[32] At all events, in determining the provision that should be made, the Court is to have regard to the factors set out in s 91(4)(e)–(p) of the Act.
[31]Re Hodgson [1955] VLR 481, 485 (Herring CJ); Blore v Lang (1960) 104 CLR 124, 135; Anderson v Teboneras [1990] VR 527, 535 (Ormiston J).
[32]Blore v Lang (1960) 104 CLR 124, 135.
If beneficiaries do not give evidence as to their final position or other claims on the testator’s bounty, the Court is entitled fairly to assume that they have no special claim other than relationship and, in particular, that they have adequate resources upon which to live.[33]
[33]Anderson v Teboneras [1990] VR 527, 535; Borebor v Keane [2013] VSC 35 [65] (Hargrave J).
The applicant bears the onus of proving, on the balance of probabilities, that the testator did not make adequate provision for the applicant’s proper maintenance and support.[34]
[34]Schmidt v Watkins [2002] VSC 273 [17]–[21] (Harper J); Baxter v Baxter [2014] VSC 377 [59].
If an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. Where a child falls on hard times, and where assets are available, the community may expect a parent to provide a buffer against contingencies.[35] Other relevant factors, in the case of an adult child, include (a) a lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years; (b) the need for financial security and a fund to protect against the ordinary vicissitudes of life; and (c) an inability on the part of the applicant to earn an income, or where the claimant has a limited means of earning an income.[36]
[35]Walsh v Walsh [2013] NSWSC 1065 [121] (Hallen J), quoted in Baxter v Baxter [2014] VSC 377 [62]. See Taylor v Farrugia [2009] NSWSC 801 [58] (Brereton J).
[36]Walsh v Walsh [2013] NSWSC 1065 [121], quoted in Baxter v Baxter [2014] VSC 377 [62].
The question of what order should be made is decided by reference to the facts at the time of trial.[37]
[37]Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ), 136 (Kitto J); Grey v Harrison [1997] 2 VR 359, 364 (Callaway JA, with whom Tadgell and Charles JJA agreed).
Reasons of the trial judge
At trial, the parties relied upon numerous affidavits filed by various deponents in the limited grant proceeding and the pt IV proceeding. The applicant and the second respondent were the only witnesses who gave viva voce evidence.
After setting out the relevant legal principles, the trial judge gave her assessment of the witnesses. She said that the second respondent ‘gave his evidence in a straightforward and concise manner’.[38] In relation to the applicant, the trial judge found that, on some matters, he ‘could not be considered a reliable witness’ and ‘was not a truthful witness’.[39] She described him as ‘an argumentative witness who on the whole was non-responsive to questions put to him in cross-examination’.[40] She noted his ‘lack of candour’ and ‘wholly unsubstantiated evidence’ on some issues.[41] She also said that there were many aspects of his viva voce evidence that were unsatisfactory.[42] However, she said that she accepted his evidence ‘on significant issues pertinent to this claim’, such as matters concerning his financial need, his relationship with the deceased and his role as the deceased’s carer.[43]
[38]Reasons [28].
[39]Ibid [29].
[40]Ibid [31].
[41]Ibid.
[42]Ibid [32].
[43]Ibid.
As to the applicant’s conduct, the trial judge said:
I do not consider Marc’s conduct post the Deceased’s death, and in particular his conduct of this litigation and the Limited Grant Proceeding should be considered disentitling conduct.
There is no doubt that Marc’s conduct has caused unnecessary delay in the preparation and auction of the property. I note that costs orders have been made in the Limited Grant Proceeding. Any conduct affecting that proceeding should be as much as possible quarantined from this proceeding.[44]
[44]Ibid [32]–[33].
The trial judge turned to consider the evidence in the light of the criteria set out in s 91(4)(e)–(o) of the Act. For ease of reference, those criteria, which are mentioned above, are as follows:
(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.
As to s 91(4)(e), the trial judge said:
Marc is the eldest son of the Deceased. He is 56 years old being born on 3 October 1960. Marc resided with his parents for most of his life. He asserts that he lived in the family home since 1994 when he returned to live with the Deceased.
Marc’s evidence is that he lived off and on in the family home. Remy’s evidence is that Marc lived with his parents all of his adult life.
Their father died in 1994 and Marc’s evidence is that he returned to live with the Deceased to assist in her care. He said that the Deceased ‘was extremely sensitive and had separation anxiety and required significant care’.
The evidence is that in or about mid-2000 the Deceased’s eyesight deteriorated and she was certified legally blind in December 2000.
Marc’s evidence is that since 2000:
I took extra care of my late mother. The daily routine typically included but was not limited to:
a. reading her academic journal to keep her engaged;
b. prepare food due to her restricted diet;
c. general cleaning and laundry cleaning;
d. arranging appointments;
e. continuing with her rehabilitation program;
f.accompanying and assisting her whenever my late mother had to go out as she did not have a blind dog and my late mother could not safely move around in the house or go outside without my supervision
g.assisting her to attend social activities such as Institute for the Study of French Australian Relations (ISFAR), meeting and seminars at the State Library of Victoria and U3A with Dr Sam Bastomsky initially and later a special group in Orrong Road, Armadale;
h.assisting in preparation of her tax returns and dealing with accountants;
i. assisting her in contractual matters;
j.performing all house chores as my late mother do not have the capability of doing so after she was legally blind;
k. drying her hair;
l.applying cream on her and doing her makeup after the council’s personal carer Mrs Carol came in twice a week or three times in summer to bathe my late mother.
Remy’s evidence was that due to the Deceased being declared legally blind after her stroke in 1999, she had limited capacity but was physically strong and could move around the house with a walking stick. He said that consequently the Deceased was very dependent upon those around her, as she could not prepare meals. Pascale left to travel in Europe in 1988 and it appears has lived overseas since. The evidence is that Remy was not living at home with his parents in 1994 when Marc says he returned home to live with the Deceased after their father’s death. In addition, Remy worked in Tasmania from 2003 to 2005.
Remy’s evidence was that Marc failed to keep the property in a fit state and that it was extremely dangerous for an elderly person. He said that the Deceased suffered several falls due to obstacles throughout the home, placing her in hospital on a number of occasions. These allegations were denied by Marc.
An affidavit was filed by Robert Donald Briers Forsythe sworn 5 March 2015 in the Limited Grant Proceeding. Mr Forsythe had done some maintenance work for the Deceased on a regular basis from 2006. He said that as far as he could ascertain the property seemed structurally sound and there was nothing that could not be relatively easily repaired.
Pascale’s evidence was that from approximately 2000 onwards the Deceased had become increasingly frail and her sight deteriorated until she needed full time care. Pascale noted that the Deceased greatly valued her independence and that she had been on a trip to England in 2007 with Pascale which gave her some relief from what Pascale said was ‘the increasing control the plaintiff sought to exert on every aspect of her [the Deceased’s] life’: for example, what he allowed her to eat or where he would allow her to go. Pascale said that despite the Deceased having sufficient funds, Marc would insist on sending her to see Pascale with a suitcase of inappropriate clothes. Pascale’s evidence was that when the Deceased travelled with her in England she was worried that Marc would be angry if she brought new clothes home. I note that the evidence is of only one visit by the Deceased to see Pascale in 2007.
Mr Michael Ambrose Kelly, Remy and Pascale’s former solicitor, deposed in the Limited Grant Proceeding following the Deceased’s death in an attempt to locate the Deceased’s original will:
[17]On 16 September 2014, I was permitted by the defendant to attend the family home in company with the defendant’s solicitor’s litigation manager, Ms Sally Bakowski, and the defendant for the purpose of searching for the original Will.
…
[19]When I visited the family home on 16 September 2014, I was shocked by what I saw. It was a scene of domestic squalor. The house was squalored [sic], untidy, cluttered and disorderly. It contained vast quantities of hoarded rubbish, refuse, old papers and other worthless items. There were only narrow pathways through the accumulated rubbish. From the appearance and volume, the hoarding had taken place over several years as there were many items that were very old with little or no value.
…
[21]The defendant [Marc] continues to live in the family home and has permitted it to fall into disrepair and squalor.
Colour photographs taken on 30 November 2016 were exhibited to demonstrate the state of the property at or about November 2016. I do not consider the photographs are consistent with Mr Kelly’s description. In any event, the photographs depict the property in 2016 some four years after the Deceased left the property.
Evidence was given in relation to Marc’s relationship with the Deceased after 23 August 2012 when she was admitted initially to Caulfield Hospital and then to Kalimna House Private Nursing Home (‘Kalimna House’) until her death on 13 April 2014. Importantly there was evidence that while the Deceased was admitted to Caulfield Hospital approximately $500,000 was withdrawn from her CBA bank account to obtain a bank cheque in that amount. In his viva voce evidence, Marc said that Mr Forsythe was the Deceased’s agent who withdrew the $500,000 from the CBA account. Marc maintained that he did not have possession of the cheque and that the $500,000 was withdrawn to stop the ‘State Trustees from getting it’.
On 12 April 2013 VCAT ordered that Marc repay the cheque into the Deceased’s account within seven days, which he did.
I do not accept Marc’s evidence in relation to the withdrawal of the $500,000 from the Deceased’s bank account. The evidence that Mr Forsythe was the agent who withdrew the money was raised for the first time by Marc under cross-examination. Mr Forsythe’s affidavit makes no mention of withdrawing the money. There is no evidence that Marc intended to dissipate the money for his benefit. However, for whatever misguided reason I accept that Marc withdrew the money and that this was not necessarily in the Deceased’s best interest.
After the Deceased was admitted to Caulfield Hospital and then Kalimna House on 29 August 2012, VCAT determined that the Deceased had a disability and could not make reasonable judgments about her personal circumstances. The VCAT appointed the Public Advocate as her guardian to make decisions about her accommodation and medical care.
Remy’s evidence is that Marc had attempted on a number of occasions to remove the Deceased to another hospital. This in turn led staff at the Caulfield Hospital to apply for an interim guardianship order, which was granted. In August 2012 the matter was referred to VCAT’s Guardianship List where it remained until the Deceased’s death in April 2014. Guardians from the guardianship office of the state of Victoria were appointed formally until 29 May 2013, when VCAT appointed Ms Lorraine Lourenz and Remy as joint guardians. Marc opposed Remy’s appointment as guardian. In July 2013 Ms Lourenz and Remy arranged for the Deceased to be transferred from Caulfield Hospital’s Glenhuntly ward to Kalimna House.
Remy’s evidence was that in early 2014, Kalimna House sought orders from VCAT to restrict Marc’s constant presence at the nursing home. On 2 April 2014, following advice from the resident nurse and staff at Kalimna House and concerns about Marc’s impact on the Deceased’s health, care and nutrition, as guardian, Remy laid down specific guidelines to be followed by Kalimna House staff.
I accept that following the Deceased’s admission to Caulfield Hospital and subsequently Kalimna House Marc’s behaviour and conduct towards the Deceased became problematic and inappropriate.
I am satisfied that Marc lived with the Deceased for most of his adult life. After 1994 he remained with the Deceased and it appears it was in large a loving relationship. After the Deceased suffered from a stroke and was declared legally blind, Marc continued to live with her and it was uncontested that she required care and he provided it. There were periods of time when Remy and Pascale were not able to provide any assistance or care for the Deceased. Whatever can be said, there is no evidence that Marc was not available to the Deceased on a daily basis to assist her to live in her home up until 2012. While criticism has been made about the way in which the property was maintained and cared for, I am satisfied that up to 2012 Marc maintained the property in a reasonable state. Mr Forsythe’s evidence was that from 2006 when he was involved with the property there was no evidence of any major disrepair or a description akin to that given by Mr Kelly when he saw the property in 2016. It may well be that the property was left in some disrepair and an undesirable state from the time the Deceased left the home until Marc was required to vacate the property. However, I am satisfied that in the period of time when the Deceased lived in the home with Marc this was not the case.
At no point in time were Pascale or Remy sufficiently concerned about the care provided by Marc to the Deceased to take steps for alternate care for the Deceased and there is no evidence that it was the Deceased’s strong wish or desire to be cared for by anybody else.[45]
[45]Ibid [35]–[54] (citations omitted).
As to s 91(4)(f), the trial judge said:
The concept of obligation has a wide import and has not been limited in any way by the legislature and subsequent case law.
The Deceased died intestate and accordingly her estate is distributed in accordance with Part 1 Division 6 of the Act, the effect being that her estate is divided equally between her surviving children.
Marc submits that the Deceased’s obligations or responsibilities to him were such that she should not have treated her children equally but she should have provided more for him. Marc’s evidence is that he sacrificed his most productive career years in caring for the Deceased.
In relation to his employment, Marc’s evidence is that:
(a)in or about 1980 he finished secondary school and commenced work immediately;
(b) in 1988 he was retrenched after working for the Australian Press Cutting Agency for six years. He was then ‘fractionally’ unemployed for 18 months after his redundancy and had a series of part time jobs. From 1993 he worked on a casual/commission basis installing outdoor temporary signage as well as being employed on a contract basis as a site specific inventory controller for ‘Formfile ‘in East Kew; and
(c) he worked full time at Formfile from 1998 until he resigned immediately after the Deceased’s stroke in November 1999 in order to take care of her. Since resigning his position at Formfile in 1999 he commenced full time care of the Deceased and did not have any income and commenced receiving a carer’s pension from 2000. His evidence was that from 2000 when he was receiving the carer’s pension he worked up to a limit of 25 hours per week, selling magazines in markets and fairs; selling ‘ephemera to Ephemera Society’ between 2004 and 2007; and he volunteered at various organisations, such as the Royal Victorian Institute of the Blind.
In addition to his contention that he sacrificed his most productive career years in caring for his mother, Marc also asserts that for many years he provided day to day care and support to the Deceased and that the Deceased was very dependent on him, particularly in her later years. His evidence is that he deposited his carer’s pension from Centrelink into the Deceased’s bank account in order for it to be available for her use and benefit and lived off a carer’s supplement payment from Centrelink in the sum of $80 to $120 per fortnight. Marc’s evidence was that the Deceased was concerned about whether he could survive on his own after her death which led to a promise that he could continue to reside in the property after her death.
Marc submits that on the basis that he has no assets, savings and he is totally reliant on welfare for his day to day living expenses and the other reasons set out above, the Deceased had an obligation to have provided more for him.
Marc’s evidence is that he is currently unemployed and has not had a full time job since he resigned from Formfile in 1999. He currently receives Newstart Allowance of approximately $500 per fortnight. His evidence is that he has made and continues to make considerable efforts and attempts to obtain employment since the death of the Deceased. This includes:
(a) attending job provider centres, approaching potential employers on a daily basis;
(b) applying for more than 20 jobs a week; and
(c) attending interviews since December 2015 after being shortlisted as a private carer at Docklands.
Remy’s evidence is that Marc lived in the family home all of his adult life, that he has never maintained steady employment and was on Centrelink unemployment benefits for a substantial portion of his life. Remy confirms that following the Deceased’s stroke in 1999 Marc received a carer’s pension from Centrelink.
I accept that Marc was employed in some capacity up until 1999. It is not clear if his employment, particularly after he was retrenched in 1988 from Australian Press Cutting Agency was ever anything more than a casual or commission basis. At its highest he says he was working full time at Formfile from 1998 until he resigned in 1999 following his mother’s stroke. I am not satisfied that Marc gave up his productive working years. He had a chequered employment history up to 1999. I accept however that from 1999 he elected to care for his mother and therefore not work. While Marc asserts that he worked up to 25 hours per week from 1999 he was unable to provide details of the type of work he was engaged in or substantiate the assertion.
The evidence confirms that Marc deposited his carer’s allowance into the Deceased’s account and I accept that he did so on the basis that the Deceased could benefit from the use of the money.
For convenience, I will deal with the evidence in relation to whether or not the Deceased made any promises to Marc at this point in time. In Forsyth v Sinclair Neave JA noted that, whilst Part IV does not give the Court power to make orders to give effect to a deceased person’s intention or promise to benefit someone else, such an intention or promise is a factor not be ignored and may be taken into account under s 91(4)(p).
Unless the evidence of any testamentary promise during the Deceased’s lifetime is clear and the terms of the promise are certain, the Court is unlikely to pay too much attention or place too much significance to what is alleged, as a will can readily be changed.
Marc’s evidence was that the Deceased mentioned to him a couple of times that she wanted to ensure that he would be looked after following her death and that he should be able to remain at the property.
In his viva voce evidence Marc’s [sic] stated that the Deceased wanted him to remain as long as he could in the property as long as he could keep it running and that the Deceased presumed there must be some of the carer’s payment that would enable Marc to at least pay outgoings and some maintenance. He said that the Deceased said to him on several occasions ‘don’t worry, the others have got their own premises’. Marc agreed that he did not stay in the role as the Deceased’s carer on the basis of any promise that was made but that he was reassured by the promise.
On the other hand, Pascale’s evidence was that the Deceased wanted her estate to be shared equally between the three children and that the Deceased ‘remained resolute in this wish throughout her children’s changing circumstances’. Pascale’s evidence was that the Deceased offered her $20,000 to enable her to have a deposit to purchase a home with her then partner and that the Deceased said that she would make an addition to her will to ensure that Remy and Marc would have a payment of $20,000 before the remainder of the estate was distributed to ensure that she remained fair to all of them. Further, Pascale’s evidence is that the Deceased had talked to her about considering whether she should alter her will to make provision for her grandson, Pascale’s son Finn, but concluded that she wanted to remain fair to the three children and not make any additional provision for Finn. Pascale’s evidence is that the Deceased felt that her children had taken different paths in life and made decisions which meant that they were all in different positions in terms of their finances but that she still felt that her children should have an equal share of the estate when she died.
I do not accept Marc’s evidence in relation to the extent to which the Deceased told Marc that he would be looked after or that he could remain in the property after her death. The terms of the alleged promise, if such a promise was made, are not certain.[46]
[46]Ibid [55]–[70] (citations omitted).
As to s 91(4)(g), the trial judge said that the parties agreed that the value of the estate at the date of trial was approximately $1,450,000.[47] She noted that the final sale price of the property did not alter the agreed value of the estate.[48]
[47]Ibid [71].
[48]Ibid [72].
As to s 91(4)(h), the trial judge said:
Marc is 56 years old, single and receives the Newstart Allowance of approximately $500 per fortnight and he has no other income and has no savings.
Marc has a costs order against him in the Limited Grant Proceeding which is estimated to exceed $60,000. While a distribution was made to Marc in the sum of $155,000 by the estate, the evidence is that the entirety of this sum has been used in legal costs.
Marc’s evidence is that he currently lives in the garage of a property.
I am satisfied that Marc has inadequate resources and has a financial need. I am satisfied that despite having made numerous job applications it is unlikely Marc will ever be gainfully employed.
Remy has not disclosed any details of his or his partner’s financial position. As such, the Court is fairly entitled to assume that Remy has no special claim and that he has adequate resources upon which to live.
Pascale is a single mother with a 17 year old son she is still supporting and who is still being educated. Pascale lives in Sussex in the United Kingdom. She and her former partner jointly own their home said to be worth £450,000. There is a mortgage with six years to run but the principal amount owing and the monthly repayments are unknown. Pascale’s evidence is that she will need approximately £200,000 to buy out her former partner in order to retain the home.
Pascale currently works full time as a local authority social worker and has been in the same position for 16 years. Her evidence is that the value of her future pension remains unclear. Pascale does not have any work related benefits. Pascale’s evidence is that her son is entirely dependent upon her and will continue to be as he goes through university. In her affidavit she deposes that she separated from her partner in 2004. Her partner became ill leading to long term unemployment and reliance on benefits, leaving the majority of the cost of her son’s upkeep to Pascale so that she has been unable to accumulate any savings. Her evidence was that her partner has agreed that he will not seek to realise his share of the property until their son turns 18 and completes his sixth form in June 2017. At this point, her partner expects to realise the capital unless Pascale can find the funds to buy him out. Pascale’s evidence is that she has no prospect of doing so without her one third share of the Deceased’s estate.
Pascale’s evidence was not contested. I accept Pascale’s evidence and consider that Pascale has financial need. She is solely responsible for her son’s upkeep and will continue to be for at least the next three years. I also accept that Pascale’s present living arrangement is dependent upon finding an amount of approximately £200,000. There is no evidence of Pascale’s current income, however I note that she works full time as a local authority social work manager and has been in the same position without seeking promotion for the last 16 years. There is no evidence before the Court as to what, if any, superannuation entitlements Pascale has.[49]
[49]Ibid [73]–[80] (citation omitted).
As to s 91(4)(i), the trial judge said that there was no evidence that any of the applicant, the second respondent or the third respondent had any physical, mental or intellectual disabilities that were relevant to the claim.[50]
[50]Ibid [81].
As to s 91(4)(j), the trial judge noted that the applicant was 56 years old.[51]
[51]Ibid [82].
As to s 91(4)(k), the trial judge said:
The evidence before the Court is that a total of $195,733.38 being Marc’s Centrelink carer’s pension and supplement was deposited into the Deceased’s bank account.
Remy’s evidence is that the fees at Kalimna House amounted to over $4,000 a month which was approximately $50,000 a year.
Remy’s evidence is that if Marc had not cared for the Deceased he would have organised in-house professional care for her as he wanted the Deceased to stay in the property as long as she wanted. He agreed that any in-house care would have been much more expensive than $48,000 per annum. Remy’s evidence was that neither he nor his partner were in a position to move in and care for the Deceased, and that professional carers would have been provided if Marc was not living with the Deceased.
Remy’s evidence is that the Deceased did not need assistance between 1994 and 1999 and that she looked after herself.
I am satisfied that Marc deposited his carer’s allowance and carer’s supplement into the Deceased’s bank account. I am also satisfied that Marc only accessed the carer’s supplement for his day to day needs which was something in the order of $80 to $120 per fortnight.
I am also satisfied that but for Marc’s role as the Deceased’s carer in particular from 2000 to 2012, the Deceased would have required some form of paid assistance to remain home.[52]
[52]Ibid [83]–[88] (citations omitted).
As to s 91(4)(l), the trial judge said that it appeared from the evidence that the deceased had given $20,000 to the third respondent as a deposit to buy a home with her then partner. The trial judge also said that there was no evidence in relation to any benefits previously given by the deceased to the applicant or the second respondent.[53]
[53]Ibid [89].
As to s 91(4)(m), the trial judge said that the evidence is that the applicant lived rent-free with the deceased in the property and that the deceased maintained him financially by use of the Centrelink carer’s allowance paid into the deceased’s bank account.[54]
[54]Ibid [90].
As to s 91(4)(n), the trial judge said that no submission was made that any person had any liability to maintain the applicant.[55]
[55]Ibid [91].
As to s 91(4)(o), the trial judge said:
Submissions were made on behalf of Remy and Pascale in relation to Marc’s character and conduct and what, if any, regard the Court should have to that conduct in this proceeding.
It is submitted on behalf of Remy and Pascale that Marc’s conduct in not vacating the property following his mother’s death in April 2014 was responsible for the delay in this proceeding and in the Limited Grant Proceeding, that his conduct has led to unnecessary costs and is in contravention of the Civil Procedure Act 2010. It is submitted that the said breaches of the Civil Procedure Act should be considered under s 91(4)(o) as a factor in the exercise of the Court’s discretion not to allow further provision to Marc.
It is submitted that the Court should look at Marc’s character and conduct before and after the date of the Deceased’s death, and ‘that the conduct of the plaintiff in both proceedings has not been either good or noble and it would be an injustice if it were not taken into account’.
The evidence relied on by Remy and Pascale in relation to Marc’s misconduct before the Deceased’s death relates to the withdrawal of the $500,000 from the CBA account to obtain a bank cheque in that amount. It is submitted that the Deceased was frail, elderly and vulnerable and could not have obtained any benefit from that transaction. Reference is made to the VCAT order dated 12 April 2013 ordering Marc to repay the cheque into her account, which he did. It is submitted that the Court should also have regard to the circumstances of the appointment of the Public Advocate as the Deceased’s guardian in August 2012 to make decisions about her accommodation and medical care.
As I have said, much was said about Marc’s conduct after the date of the Deceased’s death. This includes his conduct in relation to the property; delays in the inspection of the property by the defendants’ solicitor Mr Kelly; opposition to the sale of the property; failure to maintain the property; and failure to pay rates. The evidence is that there is currently $4,411.98 in outstanding rates on the property. I accept Marc’s evidence that he endeavoured to make some payments to the rates by way of small instalments as he was financially able to. Reference is also made to Marc’s failure to pay rent for his occupation of the property from 13 April 2014 until being evicted, a period of two years and six months. It was submitted that in that period the estate has been denied rental income in the sum of approximately $76,000.
Most notably however, submissions were made in relation to Marc’s failure to obey Court orders being disentitling conduct which should be taken into account in the exercise of the Court’s discretion as to whether or not to provide further provision.
I do not accept the submissions made on behalf of Remy and Pascale that Marc’s failure to obey Court orders is a matter that I should take into consideration for the purpose of this proceeding. In McKenzie v Topp Nettle J said …
It appears that the requirement to have regard to character and conduct in s 91(4)(o) of the Act now stands in place of the former provisions of s 96(1) (which provided that if the character and conduct of the plaintiff were such as to disentitle that person to relief the court might refuse to grant an order). I take it therefore that the sort of character and conduct to which one is to have regard for the purposes of s 91(4)(o) is limited, as it was under the former s 96(1), to misconduct towards the testatrix or which shows that the plaintiff’s need is the result of his own default. It may be that there is a difference in the onus of proof as between the new s 91(4)(o) and the former s 96(1). Under the former section, disentitling conduct was an exception to an entitlement and so it might be supposed that the evidential onus lay upon those who asserted disentitling conduct to prove its existence. Now that the court is directed to have regard to the subject in determining if there is jurisdiction to make an order, it would seem to follow that the onus of proof lies upon the plaintiff. But practically speaking it does not make a great deal of difference. Until and unless evidence of disentitling conduct is adduced, there will be none to consider.
Further, and more recently, in Christidou v Chris McMillan J stated that post-mortem conduct was not relevant:
In relation to Mr Spaulding’s submissions regarding the character and conduct of Natasa after the death of the deceased, in my view, such matters are not relevant in considering the task that must be undertaken by the Court.
This is a case based on the Deceased’s intestacy – the operation of the law determines the destination of her estate so character and conduct is irrelevant for that purpose.
I consider that any conduct postdating the Deceased’s death may be relevant only to the issue as whether it demonstrates that Marc’s need is as a result of his own default, or whether it has caused a negative impact of the value of the estate.
Marc’s withdrawal of the $500,000 from the Deceased’s bank account with no adequate explanation is of concern but ultimately had no real impact on the Deceased or the estate. Equally, Marc’s conduct resulting in Caulfield Hospital staff making an application for a guardianship order caused inconvenience to the Deceased’s then carers, but there is no evidence that it had a detrimental effect on the Deceased or the estate. I am satisfied that there is no evidence which points to Marc’s conduct up until 2012 which would be considered of a nature and type to in some way disentitle him from further provision.
There is no evidence before the Court that Marc’s conduct after the Deceased’s death caused a decline in the value of the estate. There were three valuations provided to the Court in relation to the property as follows:
(a) 30 June 2015 - $1,800,000
(b) 17 January 2017 - $2,300,000
(c) 15 March 2017 - $1,700,000
If such valuations are to be accepted, the value of the property clearly increased between 30 June 2015 and 17 January 2017. There is no evidence that the decrease in value of $100,000 between 17 January [sic] and 15 March 2017 was due to Marc’s conduct. In any case, Counsel for Remy and Pascale objected to the valuation of 15 March 2017, which was not tendered but rather provided to the Court as an aide memoire. I do not accept that the conduct complained of by Remy and Pascale negatively impacted the value of the estate.[56]
[56]Ibid [92]–[104] (citations omitted).
As to s 91(4)(p), the trial judge referred to her discussion of the applicant’s evidence in relation to the deceased’s alleged promise that he should be able to continue to live in the property after her death.[57]
[57]See [47] above. In particular, the trial judge referred to Reasons [65]–[70].
After setting out the submissions of the applicant and the second and third respondents together, the trial judge concluded:
Under the rules of intestacy each of the Deceased’s children is entitled to a third of the estate. Given the current value of the estate, this means that each is entitled to approximately $638,000.
The community does not expect a parent to look after his or her child for the rest of the child’s life in retirement. I am not satisfied that the Deceased was sufficiently concerned that the property was to be for Marc’s use for the rest of his life or that promises were made to that effect by the Deceased to Marc. In determining how much provision to award, if any, the Court is exercising a discretion. The authorities are clear that there is no presumption that beneficiaries in the same ‘class’ should be treated equally, and the circumstances of each case must be considered by the Court. In determining what is adequate provision for an applicant’s proper maintenance and support, the Court is entitled to allow for contingencies that are no more than mere possibilities. The question of needs should not be too narrowly focussed.
I am satisfied on the evidence that Marc was a responsible and good son to the Deceased. I am satisfied that from 1994 to 2012, Marc provided necessary care and assistance to the Deceased to enable her to live at home. From 2000 the Deceased was described as legally blind and on Remy’s own evidence needed the assistance of others to live independently. While Marc lived rent free with the Deceased from 2000 to 2016 while in receipt of the carer’s pension he pooled it with the Deceased’s finances. There is no evidence that Marc used unnecessarily or capriciously any of the Deceased’s finances. To the contrary, it appears if anything that Marc led a very frugal existence and continues to do so.
While Marc did not produce any evidence from an accountant or bank accounts of any significant documentary evidence to substantiate his financial position, I am satisfied that he has a real financial need. His current living arrangements are in the garage at the back of a property, paying rent of $120 per week. Marc’s financial position has deteriorated since the Deceased’s death in large part due to his own conduct, in particular his conduct in the Limited Grant Proceeding. Marc received a distribution of $155,000 from the estate. Regrettably it has been used to pay for legal expenses. This is no one’s fault but Marc’s. Having said that, even with the $155,000, Marc would have had financial need. He does not have any savings and it is unlikely he will be employed in the future. This would have been the case whether or not he used the $155,000 on legal fees.
In my view, Marc’s current financial situation is such that even with his one third entitlement of the estate he has only limited financial buffer against future financial contingencies.
In this case, the estate is not large and it is not small. In my view, the pertinent facts in this case include Marc’s financial need, the size of the estate and the fact that there is a competing claim from Pascale and that these should be taken into account in assessing what is adequate provision for Marc.
Regrettably, if Marc had not been required to use the $155,000 on legal costs and he received his one third of the estate as he is entitled to under the laws of intestacy and which was never opposed by Remy and Pascale, Marc’s share of the estate would have been approximately $638,000 (($1,450,000/3) + $155,000). As such his financial situation would have been such that he had some buffer against financial contingencies.
I consider that while Marc has financial need, his financial situation has been made worse by his conduct in the Limited Grant Proceeding, resulting in the costs order against him and the accumulation of his legal fees. This is a factor which must be balanced against the remaining criteria in s 91(4)(e)-(o). What cannot be underestimated is Marc’s role not just as a dutiful child to the Deceased, as I consider Remy and Pascale were equally dutiful and loving children, but his role as the Deceased’s carer from 2000 to 2012, which enabled her to live at home even though she was elderly and visually impaired. Marc may have lived with the Deceased rent free from 1994, but he contributed to the household finances by depositing all his available income, the carer’s pension and the carer’s supplement into the Deceased’s bank account.
In my view:
(a) Marc had a long and loving relationship with the Deceased, and from at least 2000 to 2012 he performed a role of the Deceased’s carer, providing her with daily care enabling her to live in her home;
(b) Marc has limited financial security for the future;
(c) Marc is unemployed with no income;
(d) Marc has survived on Centrelink benefits and will continue to do so in the future; and
(e) Marc’s conduct in the Limited Grant Proceeding has impacted on his financial situation. In this context his conduct is relevant.
Given all the circumstances of this case, including Marc’s relationship with the Deceased, his financial need, the size of the estate, Pascale’s financial need, I consider further provision should be made for Marc. To that end, I consider that Marc is entitled to a legacy of $125,000 and then the remainder of the estate should be divided equally between Marc, Remy and Pascale …[58]
[58]Reasons [127]–[136] (citations omitted).
Application for leave to appeal
On 17 May 2017, the applicant filed an application for leave to appeal against the order of further provision made by the trial judge. He proposed the following five grounds of appeal:
1.Her Honour failed to take into account properly or at all that the Applicant had built up the assets of the Estate in that:
(a)he had contributed $195,733.38 of his Centrelink carer allowance and supplement into the bank account of the Deceased and therefore had contributed to the building up of the Deceased’s assets;
(b)he had saved the deceased’s Estate upwards of $50,000.00 per annum in residential accommodation expenses by caring for the deceased between 2000 and 2012 at her home.
2.Her Honour failed to take into account properly or at all in determining the amount of the Applicant’s further provision that:
(a) the Applicant was dependent upon the Deceased;
(b) the Applicant had no alternative accommodation;
(c)the Applicant had not worked for a considerable period of time and was unlikely to do so in the future;
and therefore would not be in a position to be able to fund himself alternative accommodation.
3.Her Honour failed to take into account properly or at all the impact of the cost order imposed by Her Honour McMillan J as constituting an impost on his financial circumstances.
4.Her Honour failed to take into account properly or at all the comparative wealth of the Applicant’s siblings and therefore the absence of their competing need in estimating the quantum of the proper provision to be made for the Applicant.
5.Her Honour erred in taking into account the Applicant’s conduct following the death of the deceased in determining the amount of the Applicant’s further provision having previously found that such conduct was not a relevant consideration.
At the hearing of the application for leave to appeal, the applicant abandoned the fifth proposed ground of appeal.
Nature of review by appellate court
Before analysing the applicant’s contentions, it is necessary to explain the nature of the review that an appellate court is to undertake in applications such as the present.
It will be recalled that, in an application for provision under pt IV of the Act, as it stood at the time of the deceased’s death, a court had to decide three questions. Those questions bear repetition:
(d) Did the deceased, at the date of her death, have responsibility to make provision for the applicant’s proper maintenance and support?
(e) If so, did the distribution of the deceased’s estate by operation of the intestacy provisions of the Act make adequate provision for the applicant’s proper maintenance and support?
(f) If not, applying the factors in s 91(4)(e)–(o) of the Act, what is the amount of provision, if any, that should be ordered?
The first question is not in issue in the present case. The second question involves both the determination of questions of fact and the exercise of value judgments.[59] The evaluative nature of the decision stems from the fact that the court must determine what constitutes ‘adequate’ provision and what it means for an applicant’s maintenance and support to be ‘proper’ in the light of its own general knowledge and experience of current social conditions and standards.[60] The third question, should it arise, involves an exercise of a discretion.[61]
[59]Singer v Berghouse (1994) 181 CLR 201, 210, citing White v Barron (1980) 144 CLR 431, 441–3 (Mason J), 448–9 (Aickin J), 456–7 (Wilson J); Goodman v Windeyer (1980) 144 CLR 490, 509 (Aickin J); Hunter v Hunter (1987) 8 NSWLR 573, 576 (Kirby P).
[60]Singer v Berghouse (1994) 181 CLR 201, 210, quoting Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J). See also White v Barron (1980) 144 CLR 431, 443 (Mason J).
[61]Singer v Berghouse (1994) 181 CLR 201, 211.
What, then, are the circumstances in which an appellate court will interfere with a trial judge’s finding in relation to each of the second and third questions?
It has been pointed out above that the jurisdictional requirement in the form of the second question embraces two aspects: the determination of questions of fact and the exercise of value judgments. In deciding whether a finding of fact is erroneous, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the trial judge’s reasons.[62] Where a finding is based upon a trial judge’s assessment of the witnesses’ credibility, an appellate court should not interfere with that finding unless it is shown to be wrong by ‘incontrovertible facts or uncontested testimony’ or it is ‘glaringly improbable’ or ‘contrary to compelling inferences’.[63]
[62]Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ), citing Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ).
[63]Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558 [43], citing Fox v Percy (2003) 214 CLR 118, 128 [28]–[29]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 380–1 [76] (Heydon, Crennan and Bell JJ). See also Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 [78] (Santamaria, Kaye and Ashley JJA).
The value judgment inherent in the second question, which involves determining what constitutes ‘adequate’ provision and what it means for an applicant’s maintenance and support to be ‘proper’, calls for an evaluative assessment of those matters based on the facts found by the trial judge and in the light of current social conditions and standards. That assessment involves questions of fact and degree and requires value judgments to be made about matters upon which reasonable minds might differ.[64] The majority in Singer v Berghouse recognised that the principles which govern the review of such a decision are those which apply to the appellate review of discretionary decisions.[65] Thus, in accordance with the principles set out in House v The King,[66] an appellate court should not interfere with the exercise of that discretion unless it is shown that the trial judge acted on an erroneous principle of law, mistook the facts, allowed extraneous or irrelevant matters to guide or affect her, failed to take into account some material consideration or it is shown that the result is, on the facts, unreasonable or plainly unjust.[67] The majority also said that the value judgment is comparable to the making by a primary judge of ‘a sound discretionary judgment in personal injury cases when he or she assesses the quantum of damages say for pain and suffering, and for loss of amenities of life’.[68]
[64]See, in a different context, Sahin v Victorian WorkCover Authority [2017] VSCA 13 [37], [47], [49], [50] (Warren CJ, Beach JA and Cameron AJA).
[65]Singer v Berghouse (1994) 181 CLR 201, 212. In this respect, the majority adopted the approach of Kirby P in Golosky v Golosky (Unreported, New South Wales Court of Appeal, Kirby P, Handley and Cripps JJA, 5 October 1993) and agreed with his following comments (at 13–4): ‘Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.’
[66](1936) 55 CLR 499 (‘House’).
[67]Ibid 505 (Dixon, Evatt and McTiernan JJ).
[68]Singer v Berghouse (1994) 181 CLR 201, 211. See also White v Barron (1980) 144 CLR 431, 443 (Mason J); Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J).
We pause here to note that the key similarity between the determination of the quantum of damages in personal injury cases (for pain and suffering or for loss of enjoyment of life) and the determination of whether the distribution of a deceased’s estate makes adequate provision for an applicant’s proper maintenance and support is that both involve assessments which are evaluative in the sense described above.[69] Analogies similar to the one drawn by the majority in Singer v Berghouse may be drawn to other areas of the law where a statute requires a court to form an evaluative opinion of a certain matter. For example, in Phelan v Transport Accident Commission,[70] Ms Phelan applied for leave to bring a proceeding to recover damages from what she alleged was a ‘serious injury’ within the meaning of s 93(17) of the Transport Accident Act 1986. The judge at first instance dismissed her application as her disability did not meet the ‘very considerable’ threshold for ‘serious injury’ described in an earlier decision of the Full Court of this Court.[71] Ashley JA described the approach upon which an appellate court should embark in this context:
[69]See Re Will of Gilbert (1946) 46 SR (NSW) 318, 323–4 (Jordan CJ).
[70](2013) 65 MVR 427 (‘Phelan’).
[71]See Humphries v Poljak [1992] 2 VR 129, 140 (Crockett and Southwell JJ).
In considering the application of that test [whether the decision at first instance is attended with sufficient doubt to warrant grant of leave, and whether substantial injustice would be caused if the decision was allowed to stand], a number of matters need to be borne in mind. First, the applicant bore the burden of persuasion below, and she failed to discharge it. Second, her application required findings of fact to be made. In considering whether it has been demonstrated that a finding was erroneous … the ordinary appellate process is engaged. It is informed, where applicable, by consideration of credit in accordance with Fox v Percy. Of course, the question whether there was an error in fact-finding is to be determined by consideration of all the pertinent evidence … Third, once the facts were found, the judge was required to decide whether the applicant had established that her injury was, in the statutory context, ‘serious injury’. It is that ultimate finding which must be displaced if the applicant is to succeed in this court.[72]
[72]Phelan (2013) 65 MVR 427, 429–30 (citations omitted).
We interpolate that the third matter to which Ashley JA referred reflects in substance the evaluative assessment of what constitutes ‘adequate’ provision and what it means for an applicant’s maintenance and support to be ‘proper’. Ashley JA added:
Fourth, the ultimate finding was one which involved elements of ‘fact, degree and value judgment’. A decision that injury was or was not serious injury will only be set aside for specific error, or if it was plainly wrong or wholly erroneous. Fifth, specific error may lie in an erroneous finding of fact, or in a wrong expression of legal principle. Sixth, not every fact-finding error, or misstatement or misapplication of legal principle, will result in grant of leave to appeal and the success of the appeal. An error, on analysis, may not have been:
… material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.[73]
[73]Ibid 430 (citations omitted), quoting Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [79] (Tate JA) and the authorities cited therein.
We now turn to the circumstances in which an appellate court will interfere with a trial judge’s finding in relation to the third question posed above — namely, what provision, if any, ought to be made out of the deceased’s estate for the applicant. It has been pointed out that the determination of quantum involves an exercise of a discretion. That discretion is to be informed by considerations similar to those that are relevant to the evaluative assessment of whether the distribution of the deceased’s estate makes adequate provision for the applicant’s proper maintenance and support.[74] The majority in Singer v Berghouse suggested that, in order to overturn a trial judge’s determination of quantum, the applicant had to show that the trial judge made an ‘entirely erroneous estimate’ of what, in the circumstances, was an adequate provision for his or her proper maintenance and support.[75]
[74]Singer v Berghouse (1994) 181 CLR 201, 210. See [63], [66] above.
[75]Singer v Berghouse (1994) 181 CLR 201, 212, citing Singer v Berghouse (Unreported, New South Wales Court of Appeal, Kirby P, Sheller and Cripps JJA, 23 July 1992) 12–3 (Sheller JA).
The term ‘entirely erroneous estimate’, and like phrases, may be found in early cases which have dealt with appeals from a judge’s assessment of damages for personal injuries, at least in relation to pain and suffering and loss of enjoyment of life.[76] It resembles the language which was used in House to explain that an appellate court may interfere with the exercise of a trial judge’s discretion, as mentioned above, if it is shown on the facts that the final result ‘is unreasonable or plainly unjust’.[77]
[76]See Mobilio v Balliotis [1998] 3 VR 833, 839 (Brooking JA, with whom Winneke P, Ormiston, Phillips and Charles JJA agreed). See, eg, Flint v Lovell [1935] 1 KB 354, 360 (Greer LJ); Lee Transport Co Ltd v Watson (1940) 64 CLR 1, 13 (Dixon J); Miller v Jennings (1954) 92 CLR 190, 194–6 (Dixon CJ and Kitto J); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369 (Gibbs J).
[77]House (1936) 55 CLR 499, 505.
Another analogy which is apt to explain precisely what is required before an appellate court is to interfere with the exercise of a trial judge’s discretion in relation to the amount of provision that is awarded in family provision cases is the determination of whether a sentence is manifestly excessive or manifestly inadequate. In Grey v Harrison,[78] Callaway JA, with whom Tadgell and Charles JJA agreed, explained:
There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.[79]
[78][1997] 2 VR 359.
[79]Ibid 366–7 (emphasis in original).
It is often difficult to articulate the factors which contribute to the ‘instinctive synthesis’ to which Callaway JA referred. Nevertheless, a judge should strive to achieve a just result which is derived from the application of that instinctive synthesis such that the amount of provision is perfectly reasonable and within the range of what is appropriate in the circumstances.[80] It is no coincidence that this approach coheres with the principle that an appellate court may interfere with the exercise of a judge’s discretion with respect to the determination of quantum if it is shown on the facts that the judge made an ‘entirely erroneous estimate’ of what, in the circumstances, was an adequate provision for his or her proper maintenance and support[81] or that the final result ‘is unreasonable or plainly unjust’.[82]
[80]Madden v Singvongsa [2003] VSCA 62 [16] (Warren AJA, with whom Winneke P and Batt JA agreed). On the analogous test in the context of sentencing, see, eg, R v Geddes (1936) 36 SR (NSW) 554, 555–6 (Jordan CJ, with whom Bavin J agreed); DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); Binse v The Queen [2016] VSCA 145 [57] (Whelan, Beach and McLeish JJA).
[81]Singer v Berghouse (1994) 181 CLR 201, 212, citing Singer v Berghouse (Unreported, New South Wales Court of Appeal, Kirby P, Sheller and Cripps JJA, 23 July 1992) 12–3 (Sheller JA).
[82]House (1936) 55 CLR 499, 505.
In the present case, the applicant has not complained about the trial judge’s summary of the legal principles which guide the exercise of her discretion under pt IV of the Act. He has not challenged any of the trial judge’s findings of fact. The substantive basis upon which the application for leave to appeal is brought is that the trial judge failed to exercise her discretion properly. In his proposed grounds of appeal, the applicant contends that the trial judge made several specific errors in the exercise of her discretion. In so far as those complaints are directed to the question whether the distribution of the deceased’s estate by operation of the intestacy provisions of the Act makes adequate provision for the applicant’s proper maintenance and support, this Court will only interfere with the exercise of the trial judge’s discretion if one or more of the requirements in House are established.[83] Although none of the applicant’s proposed grounds of appeal expressly impeaches the amount of the further provision awarded by the trial judge, the substance of his contentions is that the amount of further provision awarded by the trial judge was inadequate.[84] Thus, it is necessary also to consider whether, in awarding further provision in the sum of $125,000, the trial judge made an ‘entirely erroneous estimate’ of what, in the circumstances, was an adequate provision for the applicant’s proper maintenance and support.[85]
[83]Ibid.
[84]So much, at least, is apparent from the following submission of the applicant made in support of the third proposed ground of appeal: ‘To therefore give the Applicant $125,000 by way of further provision representing 9% of the net Estate, $60,000 of which will be paid in legal costs does not recognise his needs sufficiently, particularly in circumstances where this further provision represents less than two-thirds of the $195,733.38 which he contributed to the size of the Estate. Her Honour was therefore in error to award a legacy of $125,000 in these circumstances.’ The oral submissions made on behalf of the applicant emphasised his challenge to the adequacy of the legacy fixed by the trial judge.
[85]Singer v Berghouse (1994) 181 CLR 201, 212, citing Singer v Berghouse (Unreported, New South Wales Court of Appeal, Kirby P, Sheller and Cripps JJA, 23 July 1992) 12–3 (Sheller JA).
Finally, it is worth emphasising the fundamental principle that this Court may not substitute its own view for that of the trial judge merely because it would have exercised its discretion in a manner different from the manner in which the trial judge exercised her discretion.[86]
[86]Singer v Berghouse (1994) 181 CLR 201, 212.
First proposed ground of appeal
By his first proposed ground of appeal, the applicant contends that the trial judge failed to take into account properly, or at all, that he had built up the assets of the estate in two ways. First, he says that he had contributed $195,733.38 of his Centrelink carer’s allowance and supplement into the deceased’s bank account. Secondly, he says that he had saved the estate more than $50,000 per annum in residential accommodation expenses by caring for the deceased at the property between 2000 and 2012.
In relation to the contribution of $195,733.38, the trial judge found that the applicant deposited the carer’s allowance and supplement into the deceased’s bank account, thereby pooling them with the deceased’s finances.[87] The trial judge accepted that the applicant did so on the basis that the deceased could benefit from the use of the money.[88] Further, the trial judge said that she was satisfied that the applicant only accessed the carer’s supplement for his day-to-day needs, which were something in the order of $80 to $120 per fortnight.[89]
[87]Reasons [59], [64], [83], [87], [129], [134].
[88]Ibid [64].
[89]Ibid [87].
The applicant contends that the trial judge did not properly assess the amount of $195,733.38, which she found was deposited in the deceased’s bank account over time, as constituting 13 per cent of the estate. The applicant points to the fact that his further provision constitutes only nine per cent of the estate. The applicant argues that the trial judge did not properly recognise that the payment of his carer’s pension into the deceased’s bank account, without his being reimbursed out of the estate for this amount, was the very reason that he had no savings.[90] The applicant also submits that the trial judge ignored the deposited amount of $195,733.38 as being a relevant consideration in assessing the amount of his further provision.
[90]Ibid [73].
We reject each of those contentions. It is clear from the reasons of the trial judge that she had regard to the amount of $195,733.38 that the applicant had deposited in the deceased’s bank account over time. She accepted that the applicant deposited those funds for the deceased’s benefit. The evidence in this respect was not contradicted. Although it is unclear precisely what weight the trial judge gave to this particular matter in the scheme of things, the same might be said for other factors which told against the applicant, such as his living rent-free with his mother for several years and his continued occupation of the property after his mother’s death, resulting in increased legal costs and disbursements that were ultimately borne by the estate.[91] At all events, the trial judge recognised the fact of the applicant’s contribution as weighing against his living rent-free.[92] She also referred to evidence that the deceased had maintained the applicant financially by using the very entitlements that the applicant had deposited into the deceased’s bank account.[93] In view of the countervailing considerations mentioned above, we see no error in the trial judge’s approach.
[91]In this respect, the second and third respondents also referred to ‘the loss to the estate caused by [the applicant’s] withdrawal of $500,000 from his mother’s bank for a period of 9 months, which caused the estate a loss of interest estimated at $13,500 (approx.)’. However, they did not point to any evidence of such a loss being incurred. At all events, the trial judge referred to this withdrawal (see Reasons [102]) and concluded: ‘Marc’s withdrawal of the $500,000 from the Deceased’s bank account with no adequate explanation is of concern but ultimately had no real impact on the Deceased or the estate.’
[92]Reasons [129], [134].
[93]Ibid [90].
We would add only that the distinction drawn by the applicant between his contribution of $195,733.38, comprising 13 per cent of the estate, and the further provision awarded, comprising nine per cent of the estate, misses the point. Where, as in the present case, there are competing considerations, each of which cannot easily be quantified, it would be unreasonable to approach the task purely as an arithmetic exercise.
We now turn to the second limb of the first proposed ground of appeal, being the contention that the trial judge failed to take into account properly, or at all, that the applicant had saved the estate more than $50,000 per annum in residential accommodation expenses by caring for the deceased at the property between 2000 and 2012.
The residential accommodation to which the applicant refers in his submissions is the Kalimna Private Nursing Home in Malvern East (‘Kalimna’). In his affidavit sworn in the pt IV proceeding on 25 August 2016, the applicant deposed that the deceased had lived at Kalimna from July 2012 until the time of her death. This evidence appears to be contradicted by the second respondent who, in his affidavit sworn on 9 September 2016, deposed that the deceased had been transferred from Caulfield Hospital to Kalimna on 8 July 2013. The second respondent also gave evidence to that effect at trial, saying that the deceased went into full-time care in Kalimna ‘from mid-2013’. The trial judge made no finding as to when the deceased had been transferred to Kalimna. However, she found that the deceased ‘was admitted to Caulfield Hospital and then [Kalimna] on 29 August 2012’,[94] discounting the possibility that the deceased had moved to Kalimna in July 2012.[95]
[94]Ibid [49]. See also Reasons [46].
[95]Ibid [46], [49].
Importantly, the trial judge referred to evidence given by the second respondent that (a) the fees at Kalimna ‘amounted to over $4,000 a month which was approximately $50,000 a year’;[96] (b) if the applicant had not cared for the deceased, the second respondent would have organised in-house professional care for her, and such care would have been much more expensive than $48,000 per annum;[97] (c) neither the second respondent nor his partner was in a position to move in and care for the deceased, and professional carers would have been provided if the applicant was not living with the deceased;[98] and (d) the deceased did not need assistance between 1994 and 1999, during which period she looked after herself.[99] The trial judge found that, but for the applicant’s role as the deceased’s carer from 2000 to 2012, the deceased ‘would have required some form of paid assistance’ to remain in the property.[100]
[96]Ibid [84].
[97]Ibid [85].
[98]Ibid.
[99]Ibid [86].
[100]Ibid [88].
The applicant contends that, in assessing the amount of his further provision, the trial judge gave no, or gave insufficient, weight to the fact that, by reason of his caring for the deceased between 2000 and 2012, the applicant had saved the deceased’s estate upwards of $50,000 per annum in residential accommodation expenses.
We reject the applicant’s contention. True it is that the second respondent in cross-examination gave evidence that the fees at Kalimna were ‘a bit over’ $4,000 a month or approximately $50,000 a year. However, the trial judge’s reference to that evidence formed the basis of her conclusion that, but for the applicant’s role as the deceased’s carer from 2000 to 2012, the deceased ‘would have required some form of paid assistance’ to remain in the property.[101] This was not quantified. No evidence was led to suggest that, if the applicant had not cared for the deceased, the estate would have been required to bear costs of more than $4,000 a month or approximately $50,000 a year.[102] Nor did the trial judge make a finding to that effect.
[101]Ibid [88] (emphasis added).
[102]Another problem with the applicant’s submission is that it assumes that (a) the deceased would have stayed at Kalimna between 2000 and 2012 if the applicant had not cared for her during that period; and (b) the fees at Kalimna remained constant during that period.
We would refuse leave to appeal on the first proposed ground.
Second proposed ground of appeal
By his second proposed ground of appeal, the applicant contends that the trial judge failed to take into account properly, or at all, that the applicant would not be in a position to find alternative accommodation by reason of her failure to take into account that (a) the applicant was dependent upon the deceased; (b) the applicant had no alternative accommodation; and (c) the applicant had not worked for a considerable period of time and was unlikely to do so in the future.
The trial judge found that the applicant had resided with his parents for most of his life[103] and that he lived with the deceased for most of his adult life.[104] She also found that, after 1994, the applicant remained with the deceased in what appeared largely to be a loving relationship.[105] She noted that there was no evidence that the applicant was unavailable to the deceased on a daily basis to assist her with living in the property until 2012.[106]
[103]Reasons [35].
[104]Ibid [53].
[105]Ibid.
[106]Ibid.
As to employment, the trial judge found that the applicant was employed ‘in some capacity’, and had a chequered employment history, until 1999.[107] While the trial judge was not satisfied that the applicant had given up his productive working years, she found that ‘from 1999 he elected to care for his mother and therefore not work’.[108] She also noted that, despite the applicant’s assertion that he worked up to 25 hours per week from 1999, he did not specify the type of work in which he was engaged or otherwise substantiate that assertion.[109] The trial judge said that the applicant has inadequate resources and a financial need.[110] She also found that, despite his numerous job applications, it is unlikely that the applicant would ever be employed gainfully.[111]
[107]Ibid [63]. The trial judge said that it is unclear whether the applicant’s employment, particularly after 1988, ‘was ever anything more than a casual or commission basis’.
[108]Ibid.
[109]Ibid [63].
[110]Ibid [76].
[111]Ibid.
The applicant observes that the trial judge identified the correct principle when she said that, if a child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death.[112] The applicant contends that the trial judge failed to give effect to this principle by making further provision ‘for a sum that would not achieve this goal’.[113]
[112]Ibid [27(h)].
[113]The applicant cited Salloum v Assouni [2013] VSC 591.
The applicant also contends that the trial judge failed to link her finding that the applicant had inadequate resources and a financial need to the issue of dependency or to the payment of a sum by way of further provision which would provide for such accommodation. He says that, as the estate had substantial assets, further provision could have been made by awarding a sum that would have enabled the applicant to buy some suitable accommodation and have a sufficient nest egg to guard against future exigencies, being the sum comparable to the bank account to which he had contributed for the deceased’s benefit.
We accept the applicant’s contention that the trial judge failed to take into account his ongoing dependency upon the deceased. This matter falls squarely within the requirement in s 91(4)(f) of the Act that a court have regard to any obligations or responsibilities of the deceased to the applicant, among other things. The trial judge was aware of this requirement.[114] She also made extensive reference to the applicant’s precarious financial position.[115] However, her treatment of whether the deceased had any obligations or responsibilities to the applicant was limited to summarising the evidence and submissions of each of the parties and addressing specific and seemingly peripheral issues about his employment,[116] the purpose of his depositing his carer’s allowance into the deceased’s bank account[117] and whether the deceased had made any promises to the applicant to the effect that he would be looked after or that he could remain in the property after her death.[118] The trial judge did not make any finding as to whether the deceased had any obligations or responsibilities to the applicant. We are not satisfied that she took this consideration, being a relevant consideration, into account.
[114]Reasons [55]–[70]. These paragraphs of the reasons fall under the subheading ‘Section 91(4)(f) – any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate’.
[115]Ibid [130]–[131].
[116]Ibid [63].
[117]Ibid [64].
[118]Ibid [65]–[70].
Furthermore, it seems to us that, while recognising the guiding principle in relation to providing for an adult child who is still dependent upon a parent[119] — namely, that there is a community expectation that the parent will make provision to fulfil that ongoing dependency after death — the trial judge failed to apply it. The principle was articulated by Brereton J in Taylor v Farrugia[120] as follows:
Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.[121]
[119]Ibid [27(h)].
[120][2009] NSWSC 801.
[121]Ibid [58]. See also Walsh v Walsh [2013] NSWSC 1065 [121], quoted in Baxter v Baxter [2014] VSC 377 [62].
In her reasons, the trial judge said:
The community does not expect a parent to look after his or her child for the rest of the child’s life in retirement. I am not satisfied that the Deceased was sufficiently concerned that the property was to be for [the applicant’s] use for the rest of his life or that promises were made to that effect by the Deceased to [the applicant] …[122]
It will be seen that the trial judge concluded, in effect, that the deceased was not sufficiently concerned that the property was to be for the applicant’s use for the rest of his life. The applicant did not seek to impeach this conclusion in his proposed grounds of appeal. However, the trial judge’s conclusion left unanswered the question whether the deceased nevertheless had an obligation to provide for the applicant.
[122]Reasons [128].
On the evidence that was before the trial judge, it is plain that the applicant remained a dependent of the deceased well into his adulthood and until the time of her death. The trial judge described at length his financial difficulties, minimal prospects of employment and difficult living conditions. It is unnecessary to repeat the evidence of the first two of these matters. As to the last matter, the applicant gave evidence at trial that, since he had vacated the property, he had been living in ‘a front section of a garage’ in emergency accommodation, paying $120 per week in rent. In all the circumstances, we consider that, consistent with principle, the community would have expected the deceased to fulfil the applicant’s ongoing dependency after her death and to provide him with a buffer against contingencies.[123]
[123]Taylor v Farrugia [2009] NSWSC 801 [58].
In our opinion, the applicant has established specific error with respect to the failure of the trial judge to take into account the applicant’s ongoing dependency upon the deceased, and the deceased’s responsibility for the applicant arising from that dependency. This had a bearing on her failure to apply the correct legal principle, set out in Taylor v Farrugia, in relation to the award of provision to an adult child who is still dependent upon a parent, upon that parent’s death. The result is that the trial judge’s discretion miscarried and falls to be exercised independently by this Court.
For completeness, we reject the applicant’s contention that the trial judge failed to take into account that the applicant had not worked for a considerable period of time and was unlikely to do so in the future. The trial judge clearly took this matter into account. She considered it unlikely that the applicant would ever be employed gainfully.[124] She also had regard to the fact that the applicant is unemployed with no income and that he ‘has survived on Centrelink benefits and will continue to do so in the future’.[125]
[124]Reasons [76].
[125]Ibid [135].
Third proposed ground of appeal
By his third proposed ground of appeal, the applicant contends that the trial judge failed to take into account properly, or at all, the impact of the costs order made by McMillan J as constituting an impost on his financial circumstances.
In considering the applicant’s financial resources, the trial judge noted that a costs order, which is estimated to exceed $60,000, had been made against him in the limited grant proceeding.[126] She also drew attention to the applicant’s conduct in the limited grant proceeding, as described in the reasons of McMillan J.[127]
[126]Ibid [74].
[127]See [16] above.
The trial judge pointed to evidence that the sum of $155,000 that had been distributed to the applicant out of the estate has been used to pay legal costs.[128] In weighing up these particular matters, as mentioned above,[129] she held:
Regrettably, if [the applicant] had not been required to use the $155,000 on legal costs and he received his one third of the estate as he is entitled to under the laws of intestacy and which was never opposed by [the second respondent] and [the third respondent], [the applicant’s] share of the estate would have been approximately $638,000 (($1,450,000/3) + $155,000). As such his financial situation would have been such that he had some buffer against financial contingencies.
I consider that while [the applicant] has financial need, his financial situation has been made worse by his conduct in the Limited Grant Proceeding, resulting in the costs order against him and the accumulation of his legal fees. This is a factor which must be balanced against the remaining criteria in s 91(4)(e)-(o) …[130]
[128]Reasons [74].
[129]See [58] above.
[130]Reasons [133]–[134].
The applicant contends that the trial judge failed to take into account that $60,000 of the total amount distributed to each child will be paid to meet the costs order. He also argues that the trial judge failed to take into account that the interim distribution of $155,000 had been expended on legal costs that were necessary in the prosecution of his claim.
In our opinion, the costs payable by the applicant as a result of the costs order made in the limited grant proceeding, whatever the precise amount of those costs might be,[131] was not relevant to the trial judge’s exercise of her discretion. The course of the limited grant proceeding was tortuous, to say the least. The reasons of McMillan J make plain that the applicant, by his continued occupation of the property in defiance of court orders, had frustrated the orderly administration of the deceased’s estate for his own benefit, caused additional costs to be incurred in the limited grant proceeding and impeded the orderly process of the sale of the property. At trial and in written submissions before this Court, the applicant contended that his continued occupation of the property could be explained by his dependency upon the deceased for accommodation and his reluctance to move from the property. However justified the applicant may have felt in continuing to occupy the property, the costs order made against him in the limited grant proceeding can and should be seen as a consequence of his conduct. It could not have availed him in the pt IV proceeding.
[131]On the second day of trial, counsel for the applicant told the trial judge that the applicant expected the costs order made against him in the limited grant proceeding to amount to $60,000, despite there having been no taxation of costs.
We would refuse leave to appeal on the third proposed ground.
Fourth proposed ground of appeal
By his fourth proposed ground of appeal, the applicant contends that the trial judge failed to take into account properly, or at all, the comparative wealth of his siblings and therefore the absence of their competing need in estimating the amount of the proper provision to be made for him.
The applicant’s brother, the second respondent, gave evidence that he was an academic at Monash University. He said that he was paid at senior lecturer rates and that he was not destitute. The trial judge said that the second respondent had not disclosed any details of his or his partner’s financial position.[132] On that footing, she assumed that the second respondent had no special claim and that he had adequate resources to live.[133]
[132]Reasons [77].
[133]Ibid [77].
The trial judge accepted the evidence given by the applicant’s sister, the third respondent.[134] That evidence was uncontested and led the trial judge to conclude that the third respondent had a financial need.[135] As mentioned above,[136] the third respondent is a single mother who lives in England with her 17-year-old son. Her son is entirely dependent upon her and will continue to be dependent upon her as he studies at university. The third respondent separated from her former partner in 2004. Her former partner became ill, which led to long-term unemployment and reliance upon benefits. This left the third respondent to bear the majority of the cost of her son’s upkeep. As a result, she has been unable to accumulate any savings.
[134]Ibid [80].
[135]Ibid [80].
[136]See [49] above.
The third respondent has worked full-time as a local authority social worker for 16 years. She gave evidence that the value of her future pension is unclear. She does not have any work-related benefits.
The third respondent and her former partner jointly own their home, which is said to be worth £450,000. The home is mortgaged, with six years to run, but the principal amount owing and the monthly repayments are unknown. The third respondent said that she would need some £200,000 to buy out her former partner in order to retain the home. Her former partner agreed that he would not seek to realise his share of the home until their son turns 18 and completes his sixth form in June 2017. Her former partner expected to realise the capital unless the third respondent could find the funds to buy him out. The third respondent had no prospect of doing so without her one-third share of the deceased’s estate.
The applicant contends that neither the second respondent nor the third respondent had a competing need. In the circumstances, so it is submitted, proper provision should be made for the person who has been the primary carer of the deceased and who was dependent upon the deceased. The applicant argues that the trial judge did not give sufficient recognition to this matter.
We will deal first with the second respondent. As mentioned above, the second respondent gave no evidence in relation to his or his partner’s financial position. We see no error in the trial judge proceeding on the basis that the second respondent had no special claim and that he had adequate resources to live.
As to the third respondent, it is clear that her financial position was a factor which contributed to a reduction in the further provision that was to be awarded to the applicant.[137] However, it was open to the trial judge to conclude, based on the third respondent’s uncontested evidence, that the third respondent had a financial need.[138] This remains a relevant factor in the re-exercise of the discretion.
[137]In assessing what should be the adequate provision for the applicant, the trial judge took into account the third respondent’s competing claim, which was embodied in her financial need. See Reasons [132], [136].
[138]Reasons [80].
We reject the contention that the trial judge did not recognise that the applicant had been the deceased’s primary carer and was dependent upon the deceased. The trial judge plainly took these matters into account.[139] What is more, her recognition of the applicant’s role as the deceased’s primary carer led her to conclude:
What cannot be underestimated is Marc’s role not just as a dutiful child to the Deceased, as I consider Remy and Pascale were equally dutiful and loving children, but his role as the Deceased’s carer from 2000 to 2012, which enabled her to live at home even though she was elderly and visually impaired …[140]
[139]Ibid [128]–[129], [135].
[140]Ibid [134].
We would refuse leave to appeal on the fourth proposed ground.
Amount of further provision
In view of our conclusion on the second ground of appeal, it remains to determine the amount of further provision that should be awarded to the applicant for his proper maintenance and support. At the hearing of the present application, counsel for the applicant and counsel for the second and third respondents agreed that, if this Court were to exercise its discretion to award further provision to the applicant, such provision may be awarded by the payment of a legacy out of the estate before dividing equally the balance of the estate among the applicant, the second respondent and the third respondent. We propose to adopt this course.
In the result, we consider that further provision in the amount of $250,000 is within the range of what is appropriate in the circumstances, with the balance of the estate again being divided equally among the applicant, the second respondent and the third respondent. We are fortified in this view having regard also to the other factors set out in s 91(4) including the applicant’s financial need, his age, the unlikelihood that he will find gainful employment, his role as the deceased’s primary carer for some 12 years and his contribution to the value of the estate. We have had regard also to countervailing considerations including the financial need and competing claim of the third respondent and the applicant’s living rent-free in the property for several years.
We will hear from the parties on the question of costs.
SCHEDULE OF PARTIES
S APCI 2017 0053
BETWEEN
| MARC DOMINIC DAVISON | Applicant |
| and | |
| PETER RUSTON KEMPSON (AS ADMINISTRATOR OF THE ESTATE OF GENEVIEVE DAVISON, DECEASED) | First Respondent |
| REMY OLIVIER GALLON DAVISON | Second Respondent |
| PASCALE FRANCOISE ANNE DAVISON | Third Respondent |
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