Martin v Joyce Kathleen Pimpinella as administrator of the estate of Marie Louise Jacobs Martin
[2024] WASC 74
•18 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MARTIN -v- JOYCE KATHLEEN PIMPINELLA as administrator of the estate of MARIE LOUISE JACOBS MARTIN [2024] WASC 74
CORAM: WHITBY J
HEARD: 13 MARCH 2024
DELIVERED : 18 MARCH 2024
FILE NO/S: CIV 2137 of 2021
BETWEEN: STEPHEN EDWIN MARTIN
Plaintiff
AND
JOYCE KATHLEEN PIMPINELLA as administrator of the estate of MARIE LOUISE JACOBS MARTIN
First Defendant
BERNADETTE ZILKENS as administrator of the estate of MARIE LOUISE JACOBS MARTIN
Second Defendant
JOHN ANDREW JACOBS
Third Defendant
NOEL STEPHEN JACOBS
Fourth Defendant
GLADYS CECILIA STAPLETON
Fifth Defendant
ANN MATILDA MCKINLEY
Sixth Defendant
JOAN MARIE SAINT
Seventh Defendant
JOYCE KATHLEEN PIMPINELLA
Eighth Defendant
BERNADETTE ZILKENS
Ninth Defendant
Catchwords:
Family provisions and maintenance - Application of husband - Wife dies intestate - Whether laws of intestacy make adequate provision for the proper maintenance of the husband - Application under s 6(1) Family Provision Act 1972 (WA)
Legislation:
Administration Act 1903 (WA)
Family Provision Act 1972 (WA)
Wills Act 1970 (WA)
Result:
Further provision made for the plaintiff from the estate of the deceased, so that the plaintiff receive the Gidgegannup Property, $100,000 and be relieved of all liabilities to the estate
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | RR Joseph |
| Second Defendant | : | RR Joseph |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
| Eighth Defendant | : | No appearance |
| Ninth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | Zilkens |
| Second Defendant | : | Zilkens |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | In person |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | In person |
| Seventh Defendant | : | In person |
| Eighth Defendant | : | No appearance |
| Ninth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Boscolo v Australian Unity Trustees Limited as administrator of the estate of Mario Boscolo [2023] WASC 391
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235
Finlay v Pereg [2022] NSWSC 32
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Grey v Harrison [1997] 2 VR 359
Haskakis v Hatzopoulos [2015] NSWSC 1408
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Musasghi v Gebremariam [2022] WASCA 37
Stone v Braun [2015] WASCA 103
Tobin v Dodd [2004] WASCA 288
Vigolo v Bostin [2005] HCA 11; (2005) CLR 191
Woodley v Woodley [2018] WASCA 149
Worladge v Doddridge [1957] HCA 45
WHITBY J:
Introduction
Marie Louise Jacobs Martin (the deceased) was born on 30 May 1954 and died on 22 December 2019, at the age of 65.
The deceased married Stephen Edwin Martin, the plaintiff in this action, on 29 October 1994. The plaintiff and the deceased remained married until the death of the deceased. The plaintiff and the deceased did not have any children.
The deceased and the plaintiff lived at 70 Woolhouse Lane in Gidgegannup (Gidgegannup Property) from 29 October 1994. The plaintiff continues to live at the Gidgegannup Property.
The deceased died intestate.
The deceased's parents predeceased her. The deceased had the following siblings:
(1)Noel Stephen Jacobs born 26 December 1944 (Noel);
(2)Gladys Cecilia Stapleton born 9 February 1948 (Gladys);
(3)Ann Matilda McKinley born 4 December 1949 (Ann);
(4)Joyce Kathleen Pimpinella born 25 January 1951 (Joyce);
(5)Jean Charlotte Jacobs born 25 September 1952 and who died on 23 March 1995 (Jean);
(6)Joan Marie Saint born 8 March 1956 (Joan); and
(7)Bernadette Zilkens born 8 May 1958 (Bernadette).
Jean only had one child: John Andrew Jacobs born 12 July 1974 (John).
The plaintiff makes a claim for further provision from the deceased's estate pursuant to the Family Provision Act 1972 (WA) (FPA).
The issues to be determined in this matter are:
(1)whether the disposition of the deceased's estate pursuant to laws of intestacy did not make adequate provision for the plaintiff's proper maintenance, support, education or advancement in life; and
(2)if the answer to (a) is yes, what would be adequate provision for the proper maintenance, etc, of the plaintiff, and should the court exercise its discretion to make an order for provision in his favour?
For the reasons that follow I find that:
(1)the disposition of the deceased's estate pursuant to laws of intestacy did not make adequate provision for the plaintiff's proper maintenance, etc; and
(2)an adequate provision for the proper maintenance, etc, of the plaintiff is for the plaintiff to receive the Gidgegannup Property, an amount of $100,000 and to be relieved of all liabilities to the deceased's estate;
(3)I exercise my discretion to make an order for such provision in his favour.
Procedural history
On 22 April 2021, Bernadette and Joyce applied for letters of administration of the estate of the deceased.
Noel, Gladys, Ann and John consented to letters of administration being granted to Bernadette and Joyce.
Joan originally consented to the grant, but later withdrew her consent via email. Joan did not provide a reason for withdrawing her consent and has not sought a grant of letters of administration.
Bernadette and Joyce filed an affidavit in support of their application for letters of administration in which they deposed that:
(1)on 12 August 2020, by their solicitors, Joyce and Bernadette wrote to the plaintiff requesting him to be a co‑administrator;[1]
(2)by letter dated 17 August 2020, the plaintiff, by his solicitors at the time, advised Bernadette and Joyce that while the deceased had not signed a will, she had expressed a clear testamentary intention that the plaintiff would be the sole executor and beneficiary of her estate. Bernadette and Joyce were also informed that a draft will had been prepared in anticipation of execution and that it was appropriate for the plaintiff to make an application for letters of administration with the will annexed;[2]
(3)the plaintiff refused and/or failed and/or neglected to provide them with a copy of the relevant draft will, apply for letters of administration (with or without the will annexed), apply for a grant of probate pursuant to Part X of the Wills Act 1970 (WA), agree to be a co‑administrator of the estate, provide relevant documents or engage with them at all.[3]
[1]Affidavit of Bernadette Zilkens and Joyce Kathleen Pimpinella in support of application for letters of administration of the estate of the deceased sworn 22 April 2021 (Zilkens Pimpinella Affidavit); annexure K.
[2] Zilkens Pimpinella Affidavit; annexure L.
[3] Zilkens Pimpinella Affidavit [23].
On 28 April 2021, a registrar of the Supreme Court of Western Australia made a grant of letters of administration to Bernadette and Joyce.
On 14 May 2021, the plaintiff filed a notice of appeal from the registrar's decision to issue a grant of letters of administration to Bernadette and Joyce. The grounds of the notice of appeal were stated to be that Bernadette and Joyce were not suitable persons to act as administrators of the deceased's estate.
On 17 May 2021, Curthoys J made orders dismissing the notice of appeal on the ground that it was incompetent.
On 22 June 2021, Bernadette and Joyce filed an originating summons seeking orders authorising them to enter the Gidgegannup Property to take an inventory of assets, and to direct the plaintiff to give them papers, documents and records relating to the affairs of the deceased.
On 31 August 2021, Master Sanderson made the following orders:
1.After the expiry of 28 days, the administrators be authorised to enter the premises at 70 Woolhouse Lane, Gidgegannup (the premises) on not less than 24 hours written notice, with such notice being sent to the defendant by email to [email protected] and such access to the premises to be on a business day between the hours of 9 am and 5pm unless otherwise agreed between the administrators and Stephen Edwin Martin, for the purpose of taking inventory of estate assets, including household chattels (as defined in section 14 (2)(a) of the Administration Act 1903) (household chattels).
2.The defendant give the administrators possession of those assets of the estate not being household chattels of the deceased and any other personality.
3.The defendant deliver to the administrators all papers, documents and records relating to the financial affairs of the deceased, including but not limited to:
(a)documents relating to bank records, insurance policies, superannuation;
(b)the original duplicate certificate of title for the premises situated at 70 Woolhouse Lane, Gidgegannup; and
(c)information relating to the rental of the separate accommodation on the premises.
On 28 October 2021, the plaintiff filed an originating summons for greater provision under the FPA.
On 13 March 2024, the plaintiff's originating summons was before me for trial.
On the morning of the trial the plaintiff made a number of applications which I dismissed. I gave short oral reasons for doing so. In summary, those applications and the reasons for dismissal were:
(1)an application for a permanent stay of the proceedings on the basis that the plaintiff could not be afforded a fair trial because a breach of the electronic court management system had resulted in the plaintiff's electronically filed documents being altered without the plaintiff's knowledge - dismissed on the grounds that any unfairness to the plaintiff could be remedied by the plaintiff giving oral evidence at the trial;
(2)an application to remove Bernadette and Joyce as administrators of the estate - dismissed on the ground that this was not a matter before the court in these proceedings;
(3)an application for an injunction restraining the legal firm Zilkens from acting for Joyce and Bernadette - dismissed on the ground that the plaintiff had not demonstrated that Zilkens continuing to act would prejudice the administration of justice; and
(4)an application for substituted service of the originating summons on Gladys - dismissed on the ground that Gladys was present in court and indicated, through counsel for Joyce and Bernadette, that she would abide by the decision of the court.
After the plaintiff had given his evidence, he sought to call each of the defendants and Mr Zilkens as witnesses. When asked about the matters upon which he proposed to call these witnesses to give evidence, the plaintiff indicated that he wished to question them in relation to their conduct towards the deceased and himself and in relation to an unsigned will of the deceased. I did not permit the plaintiff to call these witnesses on the basis that the questions the plaintiff proposed to ask them were not relevant to his application pursuant to the FPA.
Factual background
On 12 October 1984, the deceased became the sole registered proprietor of the Gidgegannup Property.
The deceased and the plaintiff were married on 29 October 1994 and from this date, until the deceased's death, they lived together at the Gidgegannup Property. The plaintiff continues to live at the Gidgegannup Property.
The deceased was legally blind from 2002 and from this time she received a disability pension. The plaintiff was employed as an engineer until he was made redundant in March 2014. From 2016 until 2019, the plaintiff received a carer's pension and a carer's allowance.
The deceased died intestate on 22 December 2019.
Intestacy
As the deceased died intestate, the entitlements of her estate are governed by the Administration Act 1903 (WA) (Administration Act).
Section 14 of the Administration Act contains a table which describes the entitlements upon intestacy. Item 3 of the table sets out the entitlements where a deceased dies leaving a husband or wife and any one more of the following, namely:
(1)a parent;
(2)a brother or sister; or
(3)child of a brother or sister,
but leaving no issue.
Pursuant to item 3(b), the plaintiff as the surviving husband of the deceased is entitled to the following:
(1)$75,000 plus interest on that sum of 5% per annum from the date of death of the deceased;
(2)one half the residue of the estate; and
(3)all household chattels.
The surviving siblings and the child of the sibling who predeceased the deceased (seven people) are entitled to an equal share of the remaining one half of the residue of the estate.
Bernadette deposes that, as at the date of the deceased's death, the total net value of the deceased's estate was $1,213,161.95.[4] The estate, at the date of death, is comprised of the following assets and liabilities:
(1)bank accounts $218,413.27
(2)household contents $3,500
(3)jewellery $4,000
(4)Gidgegannup Property $965,000
(5)rent owed by the plaintiff ($22,248.68)
[4] Exhibit 7; annexure 'BZ1'.
Bernadette deposes that, as at 21 December 2023, the net value of the deceased's estate was $1,187,181.50.[5]
[5] Exhibit 8; annexure 'BZ4'.
Bernadette deposes that, if the estate is distributed in accordance with s 14 of the Administration Act, each of those entitled would receive the following distributions as at the date of death of the deceased:[6]
(1)Plaintiff: $631,090.75 ($75,000 plus $569,080.98 being one half the residue);[7]
(2)Noel: $81,297.28;
(3)Gladys: $81,297.28;
(4)Ann: $81,297.28;
(5)Joan: $81,297.28;
(6)Joyce: $81,297.28;
(7)Bernadette: $81,297.28; and
(8)John: $81,297.28.
[6] Exhibit 9; [8].
[7] I note that 5% interest per annum on $75,000 has not been included in the amount to be distributed to the plaintiff - this is an additional amount of $3,500 per year from the date of death of the deceased.
The plaintiff's claim
In the originating summons, the plaintiff requests orders be made under the FPA relating to the estate of the deceased.
The FPA, by s 6 and s 7, provides that the plaintiff as the surviving husband of the deceased, is entitled to make a claim that the disposition of the deceased's estate effected by the law relating to intestacy does not make adequate provision from her estate for his proper maintenance, support, education or advancement in life.
Supreme Court Practice Direction 9.2.2 provides that:
[3]The originating summons must specify the relief sought. For example, … does the applicant seek to alter the distribution provided for by the Administration Act … and if so, how?
The plaintiff did not specify the provision that he seeks from the estate in the originating summons. However, it appears that he asserts an entitlement to the entirety of the deceased's estate.[8]
[8] Exhibit 6 [17] - [20].
The plaintiff represented himself in the proceedings. The court ought to afford a litigant in person a level of flexibility and assistance. The extent of that flexibility and assistance depends on the nature of the case and the litigant's understanding of the case.[9] It is appropriate to grant a litigant in person some leniency in relation to compliance with the court rules.[10] The court must ensure that the litigant in person has not failed to claim rights or put forward arguments that they might have done if they had been represented.[11] At the same time, the court should ensure that it does not act unfairly towards a represented party.[12] The overriding consideration is to afford all parties a fair and just trial.[13]
[9] Stone v Braun [2015] WASCA 103 [62] - [69].
[10] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
[11] Tobin v Dodd [2004] WASCA 288 [14].
[12] Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] ‑ [29].
[13] Woodley v Woodley [2018] WASCA 149 [76] - [77].
I have taken these principles into account in assessing the plaintiff's claim and his conduct of the proceedings.
The plaintiff's evidence
The plaintiff relied upon his affidavit sworn on 1 March 2023 in support of his claim (exhibit 6). The plaintiff also gave oral evidence at the trial during which he tendered documents and was cross‑examined.
In my assessment, the plaintiff sought to give honest evidence to the best of his ability. My assessment of the plaintiff is that he is deeply grieving the loss of his wife and is physically and mentally exhausted from caring for her before she died and from the legal proceedings that have followed her death. I accept the plaintiff's evidence in relation to the matters concerning his relationship with his wife, the history of their financial contributions to the marriage, his assets, liabilities, income and expenditure, as honest and reliable.
The plaintiff also gave evidence on many matters that were not relevant to these proceedings - including assertions that the deceased made a will leaving everything to him, that the deceased's assets were held on constructive trust for him and that he was the subject of electronic interference and relentless break‑ins at his home. The plaintiff had a tendency to be preoccupied with these issues. While I make no findings of fact in relation to the plaintiff's evidence on these matters, I do have regard to the plaintiff's general demeanour and his concerns for his safety in considering whether he has been adequately provided for under the laws of intestacy, and if not, what would constitute adequate provision.
The plaintiff gave evidence he met the deceased through mutual friends and that they dated for approximately 10 years before getting married on 29 October 1994.[14]
[14] ts 85 - 86.
The plaintiff said that he owned a property in Girrawheen before they were married, which was eventually sold. He said that he deposited the surplus proceeds from the sale into his Police and Nurses bank account and that those funds have been depleted to around $6,000 at the date of the trial.[15]
[15] ts 101.
The Gidgegannup Property was purchased by the deceased around the same time the plaintiff met her. The Gidgegannup Property is solely in the deceased's name.[16]
[16] ts 87.
After marriage, the plaintiff and deceased moved into the Gidgegannup Property and have lived there ever since.[17]
[17] ts 86.
Around the time that the plaintiff moved into the Gidgegannup Property, the plaintiff and deceased both started new employment. The plaintiff begun working at 'AES Predate' and the deceased opened a childcare centre.[18]
[18] ts 86 - 87.
The plaintiff continued his employment for almost 10 years and the deceased ceased running her childcare centre after approximately five years.[19]
[19] ts 87.
The plaintiff and deceased, after they were married, had separate bank accounts, but eventually they opened a joint account at request of the deceased.[20]
[20] ts 101.
The plaintiff's wages, when he was working, were deposited into the joint account.[21]
[21] ts 114.
In 2002, the deceased began to lose her eyesight. She also became 'quite frail' and was 'losing sensation' in her feet as a result of her diabetes.[22]
[22] ts 88.
The land for the childcare centre was in the name of the deceased, but the childcare business was jointly owned through trust agreements.[23] The plaintiff said that he mortgaged his Girrawheen property in order to obtain finance to purchase the Dianella childcare centre land.[24]
[23] ts 88 - 90.
[24] ts 100.
After the sale of the land upon which the childcare business operated, the sale proceeds were deposited into the joint account of the deceased and plaintiff.[25] Those funds were then transferred from the joint account, with 'a little bit extra', to the personal account of the deceased.[26]
[25] ts 94.
[26] ts 137.
At the date of the deceased's passing, the plaintiff owned the following assets jointly with the deceased:
(1)a block of land in Cervantes with a market appraisal value of around $220,000;[27]and
(2)Police and Nurses joint account with a balance of approximately $5,000.[28]
[27] ts 107.
[28] ts 109.
The plaintiff was made redundant in 2014 and chose to not return to work as 'Marie needed the care'[29] and she was affected by the plaintiff's absence from the home.[30]
[29] ts 110.
[30] ts 129.
The plaintiff said that, with his wife's deteriorating condition, he did all the outside maintenance of the property,[31] cooked her food,[32] assisted in cooking food for his father-in-law who was living in aged care,[33] and transported the deceased around.
[31] ts 98.
[32] ts 110.
[33] ts 111.
During the period where the plaintiff cared for the deceased, their only income was in the form of a disability pension, carer pension[34] and a small income from the rental of an auxiliary building on the Gidgegannup Property.[35]
[34] ts 110.
[35] ts 113.
The plaintiff planned and organised the construction of the auxiliary building on the Gidgegannup Property.[36]
[36] ts 114.
The funds for the construction of the auxiliary building on the Gidgegannup Property came from the joint account.[37]
[37] ts 114.
The plaintiff's carer's pension and the deceased's disability pension were both paid into the joint account.[38]
[38] ts 114 - 115.
When the deceased passed, the plaintiff was 61 years old.[39] The plaintiff received a bereavement pension for three months and after that he received unemployment payments.[40]
[39] ts 112.
[40] ts 112.
In August 2020, after the death of the deceased, the plaintiff spent 21 days in a mental health hospital in Midland (Mental Health Hospital).[41]
[41] ts 81.
The plaintiff's stay at the Mental Health Hospital was involuntary and mandated under the Mental Health Act 2014 (WA).[42]
[42] ts 81.
The plaintiff says that during his stay he was required to take medication.[43]
[43] ts 83.
Whilst at the Mental Health Hospital, the plaintiff gave evidence of various communications he had with doctors. The plaintiff said he had made 'a lot of complaints to the police' about 'experiencing an average of two break‑ins per week', and that these break‑ins 'started after my wife wrote a will, in August'.[44]
[44] ts 83.
After the death of the deceased and after he had stopped receiving the bereavement pension, the plaintiff said he was initially looking for work in order to receive his unemployment payments. However, the plaintiff said he has since 'pretty well given-up' because of difficulties finding jobs, the stress of the estate proceedings and a lack of the ability to concentrate since the deceased's passing.[45]
[45] ts 112.
The plaintiff 's expenditure is relatively stable with the exception of recent expenditure on security, including:[46]
(1)'one in infrared - wireless one on the door … that actually sounds when someone comes to the door';
(2)'infrared beams around the house' including some 'set up at the letterbox';
(3)'infrared beams around [the plaintiff's] bed'; and
(4)'mesh on the windows and the doors'.
[46] ts 117.
The plaintiff said he found it 'quite intense looking after Marie in the last six months before her passing[47] and that he has not 'really had a good night sleep in four years'.[48]
[47] ts 117.
[48] ts 120.
The plaintiff currently looks after the Gidgegannup Property,[49]and wants to continue staying at the Gidgegannup Property as, despite it being large for a single person, 'the memories are important'.[50]
[49] ts 120.
[50] ts 120.
The plaintiff said that he will be able to apply for the aged pension next year when he turns 67.[51]
[51] ts 131.
The plaintiff was concerned about the trial proceeding and had concerns about 'lodging documents without the fear of modification'.[52]
[52] ts 125.
The plaintiff stated that when trying to lodge the most recent documents on the court's portal prior to trial, he 'could see sparkles on the screen, as if somebody was remote accessing my laptop'.[53]
[53] ts 125.
The plaintiff's affidavit evidence was tendered during trial and provided details of his assets and liabilities, income and expenditure.[54] I accept the plaintiff's evidence as to these amounts.
[54] Exhibit 6 [2].
Findings of fact
On the basis of the evidence adduced at trial, I make the following findings of fact:
(1)the plaintiff and the deceased had been married for 25 years and lived together at the Gidgegannup Property for the entirety of their marriage;
(2)the deceased purchased the Gidgegannup Property in 1984 and it was held in her name;
(3)prior to his marriage to the deceased, the plaintiff purchased a property in Girrawheen;
(4)during their marriage, the plaintiff and the deceased purchased a block in Cervantes as joint tenants;
(5)the deceased owned and operated a childcare centre in Dianella - while the land upon which the childcare centre operated was held in the name of the deceased, both the plaintiff and the deceased were equal shareholders and directors of the company operating the childcare centre, Dianella Child Care Centre Pty Ltd;
(6)the plaintiff mortgaged his Girrawheen property in order to assist the deceased to obtain a loan to purchase the Dianella childcare centre land;
(7)the deceased sold the Dianella childcare centre land in 2003 and the surplus funds of $216,555.78 were transferred into the joint bank account of the plaintiff and the deceased on 21 January 2003 - this amount was later transferred from the joint bank account to a bank account in the name of the deceased;
(8)the deceased ceased working in around 2002 because of failing eyesight and received a disability pension from that time;
(9)the plaintiff was an engineer but had ceased work in 2014 when he was made redundant;
(10)after the plaintiff was made redundant, he worked as an engineer for approximately six months in 2015 or 2016;
(11)from 2016, the plaintiff cared for the deceased and received a carer's pension;
(12)early in their marriage, the plaintiff and the deceased opened a joint bank account and both the plaintiff's and deceased's income and pension were deposited into that joint bank account;
(13)the plaintiff and the deceased cared for the deceased's father for a period of time at the Gidgegannup Property;
(14)the plaintiff sold his Girrawheen property and the surplus funds were deposited into a Police and Nurses bank account in his name;
(15)the plaintiff and the deceased built an auxiliary one bedroom building on the Gidgegannup Property - although there is no documentary evidence to establish the source of the funds used to pay for the construction of the auxiliary building, I am satisfied that it was a joint endeavour of the plaintiff and the deceased and that it was more likely than not, paid for from the plaintiff's bank account;
(16)prior to the deceased's death, the auxiliary building was receiving rent which was income available to the plaintiff and the deceased;
(17)after the deceased's death, the plaintiff says that he experienced a number of break-ins at his house which made it difficult for him to concentrate and therefore, difficult for him to obtain employment; and
(18)in August 2020, the plaintiff was involuntarily admitted to the Mental Health Hospital for a period of 20 days.
The plaintiff's position at the date of the deceased's death
I am satisfied, on the basis of the plaintiff's evidence, that his position at the date of the deceased's death was as follows:
(1)the plaintiff was 61 years old;
(2)the plaintiff's assets and liabilities were:
(a)superannuation totalling $203,742;
(b)bank accounts totalling $43,240;
(c)a block of land in Cervantes $220,000;
(d)a 2016 Jeep Renegade;
(e)a 1998 Nissan Civilian motor home;
(f)personal effects; and
(g)nil liabilities.
(3)the plaintiff was receiving a modest income from his carer's pension;
(4)the deceased was receiving a disability pension;
(5)the plaintiff and the deceased had a joint bank account into which their pension payments were deposited;
(6)the deceased and the plaintiff were receiving rental income from the auxiliary building in the amount of approximately $246.25 per week; and
(7)although the plaintiff was not suffering from any physical health conditions, he was exhausted and mentally frail due to the deceased's failing health and his role of caring for her.
The plaintiff's position at the date of trial
I am satisfied, on the basis of the plaintiff's evidence, that his position at the date of trial was as follows:
(1)the plaintiff is 66 years old;
(2)although the plaintiff had received a bereavement pension for three months after the deceased's death and job seeker payments for a period thereafter, he is currently not receiving any Centrelink payments or any other income;
(3)the plaintiff is not actively seeking employment, although he expressed an interest in obtaining some further qualifications to allow him to teach at TAFE;
(4)the plaintiff's assets and liabilities are approximately:
(a)superannuation totalling $251,408;[55]
(b)bank accounts totalling $11,000;[56]
(c)a block of land in Cervantes $220,000 - $250,000;[57]
(d)a 2016 Jeep Renegade;
(e)a 1998 Nissan Civilian motor home;
(f)personal effects; and
(g)liabilities for unpaid rent of the Gidgegannup property as at 20 March 2023 of $22,248.68.[58]
[55] This was the balance as at 24 February 2023 - Martin Affidavit; exhibit 6; annexure SEM3.
[56] ts 109.
[57] ts 109.
[58] Martin Affidavit; exhibit 7; annexure 'BZI'.
Although the plaintiff is currently not receiving any income or Centrelink payments, he is entitled to apply for the aged pension at the age of 67 years.
The plaintiff's claims and need
I proceed on the basis that the plaintiff claims the entirety of the deceased's estate.
In relation to the plaintiff's needs, he gave evidence that he would like to stay living in the Gidgegannup Property because it has a lot of memories for him and that he would lose all of those memories if he was forced to leave.[59] The plaintiff was cross-examined about the size of the Gidgegannup Property and his concerns for his security at the house. The plaintiff accepted that the house had 4 - 5 bedrooms and said that he had been the subject of over 500 break-ins over the last four years.[60] When questioned about whether a smaller property would be easier for him to secure, the plaintiff responded that he 'would lose all those memories' and that he wanted to stay.[61]
[59] ts 120, 139.
[60] ts 138.
[61] ts 139.
The plaintiff's annual expenses are approximately $17,000. As at the date of the trial, the plaintiff is using his savings in order to meet those expenses. Although the plaintiff may be entitled to the aged pension at the age of 67, there was no evidence adduced as to the amount that we would likely receive. Further, the plaintiff has not been paying rent on the Gidgegannup Property and Joyce and Bernadette have accounted for that rent as a liability to the estate of the deceased.
Legal principles
The plaintiff applies for further provision from the deceased's estate pursuant to s 6(1) of the FPA. Section 6(1) of the FPA provides:
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
As is evident from s 6(1) of the FPA, there is no distinction between dispositions under a will and dispositions effected by statutory entitlements upon an intestacy.[62]
[62] Boscolo v Australian Unity Trustees Limited as administrator of the estate of Mario Boscolo [2023] WASC 391 [133].
Where the application for further provision is made upon an intestacy, s 6(2) of the FPA provides:
The Court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.
Section 10 of the FPA provides that an order takes effect as a codicil to the will or, in the case of intestacy, as a modification to the applicable rules of distribution.
Section 14(1) of the FPA provides:
Every order in which provision is made or altered shall specify the part or parts of the estate of the deceased or, where applicable, the part or parts of the distributed estate out of which such provision shall be raised or paid, and prescribe the manner of raising and paying such provision.
Section 14(6) provides that the court may make such order as to the costs of any proceeding under the FPA as it deems just.
Two stage process
On an application under s 6(1) of the FPA, the court is required to carry out a two stage process.
The first stage
The first stage requires a determination of whether the disposition of the deceased's estate effected by the law of intestacy does not adequately provide for the proper maintenance, support, education, or advancement in life of the claimant. Although the first stage requires the court to exercise a value judgment, it is ultimately a question of fact. The first stage is often referred to as the 'jurisdictional question'.[63]
[63] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [67] - [69].
The first stage evaluation must be conducted as at the date of death of the deceased. The court is required to have regard to all of the material facts that existed as at the date of the deceased's death, even if those facts were not known to the deceased. The court must also consider all material circumstances that might, at the date of death, have been reasonably foreseen by a deceased who knew all of the material facts.[64]
[64] Devereaux-Warnes v Hall [70] - [71].
In determining whether the provision under the laws of intestacy is 'adequate' for the 'proper' maintenance of the claimant, the court is to consider the requirements of the claimant for maintenance and the relationship between the claimant and the deceased. When considering the relationship between the claimant and the deceased, the court may have regard to:
(1)any sacrifices or services given by the claimant to, or for, the deceased's benefit;
(2)any contributions by the claimant to building the deceased's estate; and
(3)the conduct of the claimant towards the deceased and the conduct of the deceased towards the plaintiff.[65]
[65] Devereaux-Warnes v Hall [74] - [75].
In Lemon v Mead,[66] Buss P said the following in relation to the first stage:[67]
In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen. Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight.'
[66] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76.
[67] Lemon v Mead [54] - [55].
'Adequate' is concerned with the quantum of the provision, whereas 'proper' is concerned with the standard of maintenance to which the claimant is accustomed.[68]
[68]Worladge v Doddridge [1957] HCA 45 [11].
In Vigolo v Bostin,[69] Callinan and Heydon JJ said, in relation to the interaction between the word 'adequate' and the word 'proper':[70]
The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future …
[69] Vigolo v Bostin [2005] HCA 11; (2005) CLR 191.
[70] Vigolo v Bostin [114].
In determining whether the provision that the claimant receives pursuant to the Administration Act provides adequate provision for the claimant's proper maintenance etc, the court is to consider the provision that the claimant is to receive on the one hand and on the other hand the 'needs' that the claimant has which he cannot meet from his own resources.[71]
[71] Musasghi v Gebremariam [2022] WASCA 37 [126].
If a claimant cannot demonstrate that he has a need for provision, then a claim purely based on a moral duty and/or claim will not succeed.[72]
[72] Vigolo v Bostin [1].
In determining the jurisdictional question, the size of the estate, the moral duty of the deceased to the plaintiff and to other legitimate claimants pursuant to s 7 of the FPA, the need and moral claim of the plaintiff and the need and moral claim of the other legitimate claimants are all relevant factors to be considered.[73]
[73] Boscolo [141].
The term 'moral duty' refers to the deceased's duty to make adequate provision for the proper maintenance, support, education and advancement in life of eligible claimants, with the precise nature and extent of that duty being determined by reference to the totality of the relationship between the claimant and the deceased and contemporary accepted community standards.[74]
The second stage
[74] Vigolo v Bostin [21].
If the court determines the first stage in favour of the claimant, then the court moves to the second stage of the process. The second stage requires the court to determine what provision should be made from the estate of the deceased for the claimant.[75]
[75] Boscolo [142].
The court must exercise its discretion at the second stage having regard to the circumstances of the claimant at the date an order is made for further provision.[76]
[76] Devereaux-Warnes v Hall [71].
There is no single provision that is the provision the deceased should have made to the claimant - there are a range of appropriate provisions. It is, however, essential that the court considers all relevant factors and weighs them accordingly.[77] The process of arriving at a provision for the claimant is intuitive and an evaluative judgment - it has been described as 'instinctive synthesis'.[78]
[77] Grey v Harrison [1997] 2 VR 359, 366 - 367.
[78] Haskakis v Hatzopoulos [2015] NSWSC 1408 [96].
In circumstances where the claimant is self‑represented, the court should not be overly technical in its requirements for evidence to support the determination of the provision to be awarded to the claimant.[79]
[79] Boscolo [150]; Finlay v Pereg [2022] NSWSC 32 [68] - [69].
Aged pension
The plaintiff accepts that he is entitled to apply for the aged pension next year, at the age of 67. At the time that the deceased died, he was 61.
The public policy underlying the operation of the FPA is the community's expectation that, where circumstances allow, the moral obligation of a deceased includes making provision that is adequate from the estate. The plaintiff's entitlement or future entitlement to a pension does not answer or defeat a claim for proper provision from the estate.[80]
[80] Finlay v Pereg [2022] NSWSC 32.
The position of the defendants
Before determining the jurisdictional question at the first stage, it is necessary to consider the position of the defendants.
Joyce and Bernadette, as administrators, do not seek to actively oppose the plaintiff's claim.[81]
[81] First and Second Defendants' Opening Submissions filed 12 March 2024 [3].
None of the defendants, in their capacity as beneficiaries of the deceased's estate, appeared at the trial and none of them filed any evidence as to a moral claim on the deceased's estate, their financial position or their future needs. They are all adult siblings of the deceased, save for one defendant who is the son of a sibling who predeceased the deceased.
While they may have a statutory entitlement to a distribution from the estate of the deceased and be eligible claimants under s 7 of the Administration Act, given they have no demonstrated needs or moral claims on the bounty of the deceased, I do not consider that their statutory entitlements are a relevant factor in determining either the first or the second stage of the application pursuant to s 6(1) of the FPA.
I do however, take into account the submissions of counsel for Joyce and Bernadette, that the plaintiff has failed to adduce sufficient reliable evidence to satisfy the court that he has not been provided with adequate provision from the deceased's estate for his proper maintenance etc. Counsel for Joyce and Bernadette submits that the plaintiff's claim fails at the first stage and therefore, must be dismissed.
I now turn to determine the first stage, that is the jurisdictional question.
Did the disposition of the deceased's estate pursuant to the laws of intestacy not make adequate provision for the plaintiff's proper maintenance, support, education, or advancement in life?
Pursuant to the Administration Act, as at the date of the death of the deceased, the plaintiff would have received an amount of approximately $631,090.75. Together with his existing assets at the date of the death of approximately $547,052, his total assets were $1,178,142.75.
The following matters are of material significance to the determination of the jurisdictional question:
(1)the plaintiff and the deceased were married for 25 years. They had a joint bank account, shared the home at Gidgegannup, both financially contributed to the marriage, were co‑owners in the Dianella childcare business and engaged in a joint endeavour of building an auxiliary home at the Gidgegannup Property;
(2)the plaintiff cared for the deceased and received a carer's pension from 2016;
(3)the Gidgegannup Property, although registered in the name of the deceased, is the home of the plaintiff and he has a significant attachment to his home;
(4)the plaintiff was not suffering from any diagnosed health conditions at the date of the deceased's death, although he was physically and mentally exhausted;
(5)the plaintiff was 61 years old at the date of the deceased's death and had been unemployed for three years;
(6)the plaintiff's assets at the date of the deceased's death were his superannuation in the amount of approximately $200,000, bank accounts of approximately $43,000, a car, a motor home and a block in Cervantes worth about $220,000.
Joyce and Bernadette submit that the plaintiff did receive adequate provision from the estate for his proper maintenance, given the amount he would receive under the laws of intestacy combined with his other assets was sufficient for him to buy a home and meet his expenses for the remainder of his life.
In all of the circumstances, and applying the principles set out above, I am satisfied that the laws of intestacy did not leave the plaintiff with adequate provision for his proper maintenance, etc. This is for the following reasons:
(1)the deceased had a moral duty to provide for her husband of 25 years and the plaintiff has a strong moral claim against the estate of the deceased - he contributed significantly to the finances of the marriage and cared for the deceased on a full‑time basis from 2016. He made significant sacrifices both financial and personal, in order to care for the deceased;
(2)there are no competing moral claims or needs of other persons with an eligible claim which need to be considered;
(3)at the date of the deceased's death, the plaintiff had not been employed for three years, was 61 years of age, and was physically and mentally exhausted from caring for her - I am of the view that it would have been within the deceased's reasonable contemplation that the plaintiff's prospects of earning income were significantly reduced as a result of these circumstances;
(4)I do not consider that the possible receipt of the aged pension six years from the date of the deceased's death is a consideration that affects whether or not adequate provision has been provided at the date of the deceased's death, particularly in light of the other relevant factors;
(5)at the date of the deceased's death, the plaintiff was receiving a carer's pension and the deceased would have known that would cease upon her death;
(6)I consider that proper maintenance for the plaintiff includes him being able to continue to live in the Gidgegannup Property - his home of 25 years to which he is very attached;
(7)the provision for the plaintiff under the laws of intestacy would not have allowed the plaintiff to continue to live in and maintain the Gidgegannup Property given the estimated value of the Gidgegannup Property, according to Joyce and Bernadette, at the date of the deceased's death was $965,000;
(8)it is consistent with modern community standards that a wife would provide her husband with the security of accommodation, and if the size of the estate was such that it was possible, to continue to live in the home they had shared for 25 years and to provide sufficient funds for expenses and contingencies in the future.
In summary, given the relationship between the deceased and the plaintiff, the strong moral duty the deceased had towards the plaintiff, the strong moral claim that the plaintiff has on the deceased's bounty, the lack of any competing needs or moral claims, the size of the estate and accepted modern community standards, I am satisfied that the laws of intestacy fail to make adequate provision for the proper maintenance, etc, of the plaintiff. The jurisdictional question is resolved in the plaintiff's favour.
What is adequate provision for the proper maintenance, etc, of the plaintiff, and should the court exercise its discretion to make an order for provision in his favour?
Having found that the laws of intestacy did not make adequate provision for the plaintiff's proper maintenance, etc, I am now required to exercise the discretion, taking into account the facts as they currently exist.
In exercising this discretion, I take into account the findings I have made specifically the plaintiff's financial and personal situation, his strong moral claim on the estate, his relationship with the deceased, the lack of any competing financial or moral claims on the estate, and the size of the estate.
The plaintiff has experienced a significant mental health episode since the death of his wife and this is a factor I have also taken into account in determining what constitutes adequate provision. Further, I do not consider that the possible receipt of the aged pension by the plaintiff in one year is a significant factor which affects the provision that ought to be made, having regard to all of the factors I have outlined.
In my view, adequate provision for the proper maintenance, etc, of the plaintiff would be achieved by making orders that:
(1)the plaintiff be transferred the Gidgegannup Property;
(2)the plaintiff receive $100,000 from the deceased's bank account; and
(3)the plaintiff be relieved of repaying any liabilities to the estate.
I consider that this provision is adequate for the proper maintenance, etc, of the plaintiff as he will be able to remain in his home and have a buffer for the vicissitudes of life.
In relation to Joyce and Bernadette's costs of the proceedings, I consider that, given the fact that Joyce and Bernadette effectively had no option but to seek administration of the estate and that the intestacy of the deceased was through no fault of theirs, they should be entitled to receive their costs on a solicitor and client basis from the residue of the estate.
I will hear from the first and second defendants as to the proposed form of orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
18 MARCH 2024
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