Mastroianni v State Trustees Limited
[2014] VCC 1281
•14 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-12-04240
IN THE MATTER of an application pursuant to PART IV of the Administration and Probate Act 1958 (as amended)
- and -
IN THE MATTER of the Will and Estate of ARMANDO FIORILLO (deceased)
BETWEEN
| ELENA MASTROIANNI | Plaintiff |
| v | |
| STATE TRUSTEES LIMITED (ACN 069 593 148) (as administrator of the intestate estate of ARMANDO FIORILLO (deceased)) | Defendant |
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 19 and 20 May 2014 | |
DATE OF JUDGMENT: | 14 August 2014 | |
CASE MAY BE CITED AS: | Mastroianni v State Trustees Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1281 | |
REASONS FOR JUDGMENT
---
Subject: TESTATOR'S FAMILY MAINTENANCE
Catchwords: Claim by niece – whether the niece could establish need – whether any provision should be made for sole surviving sibling of the deceased
Legislation Cited: Administration and Probate Act 1958, s91(1), s(4)(e)-(p)
Cases Cited:Lee v Hearn (2005) 11 VR 270; Re Russell [1970] QWN 22; Vigolo v Bostin (2005) 221 CLR 191; Re Wren (decd) [1970] VR 449; Collicoat & Ors v McMillan & Anor [1999] 3 VR 803; Blair v Blair (2004) 10 VR 69; Forsyth v Sinclair [2010] VSCA 147; Grey v Harrison [1997] 2 VR 359; Re Allen (decd); Allen v Manchester [1922] NZLR 218; Petrucci v Fields [2004] VSC 425; Iwasivka v State Trustees Ltd [2005] VSC 323; Napolitano v State Trustees Ltd [2012] VSC 345; Jackson v Newns [2011] VSC 32; Schmidt v Watkins [2002] VSC 273; Moussageas v State Trustees Ltd (In the Matter of the Will of Vourdoulidis) [2013] VSC 34; Unger v Sanchez [2009] VSC 541; Webb & Ors v Ryan & Anor [2012] VSC 43; Singer v Berghouse (No 2) (1994) 181 CLR 201
Judgment: No further provision made for the plaintiff.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Baker | Bini & Associates |
| For the Defendant | Mr D Sanders | State Trustees Limited |
HER HONOUR:
1 The plaintiff, Elena Mastroianni, is the niece of Armando Fiorillo (the deceased). She seeks further provision out of the estate of her uncle pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”).
2 The plaintiff’s application was filed after the expiration of six months. The defendant consented to the application being brought out of time.
3 The deceased died on 14 October 2009. The deceased died intestate. Letters of Administration were granted to the defendant for the deceased’s estate on 18 October 2011.
Issues
4 In summary, the defendant contends that:
(a) The deceased had no moral duty to provide for the plaintiff, who was a dutiful niece but did not have a relationship that could be fairly characterised as a de facto father/daughter, nor otherwise attracting an obligation for the deceased to provide; and
(b) If this is wrong, then nonetheless, the plaintiff’s health and financial circumstances are such that no further provision ought to be ordered. The plaintiff has no significant health or financial needs and no need for further provision for her maintenance and support.
5 The defendant also seeks orders pursuant to Order 54, to assist the administration of the estate, that:
(a) A fixed sum provision be ordered for Maria Fiorillo, sister of the deceased.
(b) If further provision is ordered for the plaintiff, the amount be fixed, rather than expressed as a percentage, of the net estate.
Legal principles
6 The plaintiff seeks further provision from the estate of the deceased under s91 of the Act. Under that section, the Court is empowered to make an order for provision out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
7 In this case, the deceased died without leaving a will. The question whether the deceased had responsibility to make provision for the plaintiff is “unaffected by whether the deceased died testate or intestate”.[1] The deceased is to be regarded as having left a will by which he dealt with his estate in accordance with the intestacy provisions.[2]
[1]See Lee v Hearn (2005) 11 VR 270 at paragraph [3] per Callaway JA
[2]Re Russell [1970] QWN 22, referred to in Vigolo v Bostin (2005) 221 CLR 191 at 708 per Gummow and Hayne JJ; See also Re Wren (dec’d) [1970] VR 449 at 451 per Smith J
8 Pursuant to s91, the Court is required to undertake a three-stage process:
· First, determine whether the deceased had responsibility to make provision for the proper maintenance and support of the applicant;[3]
[3]Section 91(1)
· Second, determine whether the distribution of the estate of the deceased does not make adequate provision for the proper maintenance and support of the applicant.[4] In this case, the question at the second stage is whether the distribution of his estate effected by the intestacy provisions of the Act,[5] do not make adequate provision for the proper maintenance and support of the plaintiff; and
· Third, the amount of the provision (if any) which the Court should order.
[4]Section 91(3)
[5]Part I, Division 6
9 There is a significant overlap in the considerations referable to each stage of the process.
10 In determining each step of the three stage process:
· The Court “must have regard to” a series of matters specified in s91(4)(e) to (p);
· The Court must determine whether the deceased had a moral duty, responsibility or obligation to the plaintiff;
· The Court will bear in mind the weight to be given to freedom of testation, and the Court will only interfere if the testator failed in his or her moral duty; and
· That moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards.[6]
[6]Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston J). See also Blair v Blair (2004) 10 VR 69, 77-80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147, 61 (Neave JA)
11 The authorities have established that the concepts of moral duty and the wise and just testator continue to apply in determining whether the deceased had responsibility to make provision for the applicant.
12 In Blair v Blair,[7] Chernov JA, said:[8]
“… it is probably apt to describe the obligation of the testator that forms the subject of the inquiry under subss (1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Pt IV of the Act, including the decision of Ormiston J in Collicoat v McMillan[9]1 and Grey v Harrison.[10] Thus, it is clear enough that the ‘responsibility’ of which subs (1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, subs (3) is essentially concerned with whether the deceased — as a wise and just testator — has fulfilled his moral obligation to make adequate provision for the claimant’s proper maintenance and support. Given, however, that the court is now directed by the legislation to have regard to the matters specified in paras (e)–(p) of s 91(4) when determining the jurisdictional issues, characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Pt IV of the Act. … .”
[7]Supra
[8]At paragraph [13]
[9][1999] 3 VR 803
[10][1997] 2 VR 359
13 In agreement with Chernov JA, Nettle JA said,[11] regarding the concept of moral duty and the jurisdictional questions posed by s91(1) and (3):
“… To reason from the matters mentioned in s 91(4)(e)–(p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains 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.”
[11]At paragraph [41]. These observations were referred to with approval in Lee v Hearn (supra) at paragraph [4] per Callaway JA, in whose judgment Batt and Buchanan JJA agreed
14 In Lee v Hearn,[12] Callaway JA said that “responsibility” to make provision meant a legal or moral responsibility, according to the sense in which “moral” has been explained in the authorities.[13] In this sense, “it is not a static or idiosyncratic concept”.[14] Callaway JA, in Lee,[15] used the words “what a wise and just testator would consider his or her moral duty” to do, and said that this may change with time or in response to community standards.
[12]Supra
[13]At paragraph [5]
[14]At paragraph [8]
[15]At paragraph [8]
15 Ormiston J, as he then was, in Collicoat v McMillan,[16] discussed the concept of “moral duty” and “moral obligation”.[17] At paragraph [43], he said:
“That ‘moral obligation’, as described in Re Allen [Re Allen; Allen v Manchester [1922] NZLR 218] and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards. … .”
[16]Supra
[17]At paragraphs [36]-[47]
16 In Petrucci v Fields,[18] the applicants were a daughter-in-law and grandchildren of the deceased. Mandie J said, at paragraph [57], regarding the responsibility to make provision:
“… Consideration of the evidence as a whole in the light of the statutory criteria [in s91(4)(e) to (p)] gives rise to the question whether the deceased had a ‘moral’ responsibility to make any provision for the proper maintenance and support of any of the plaintiffs. In considering the question of moral responsibility, in the light of those criteria, the Court of necessity must have regard to the ordinary circumstances existing in society, or ‘prevailing community standards’ or make a value judgment in the light of current standards, arising as a matter of morality or humanity. The amendments to Pt IV have not in general abrogated the basic approach taken by the courts to this question for many years. To adapt the language used by Salmond J in Allen v Manchester, the statutory provisions are designed to enforce the moral obligation of testators to use their testamentary powers for the purpose of making proper and adequate provision for the support of the person concerned, having regard to the means of that person, to the means and deserts of others and to the relative urgency of the various moral claims upon their bounty — the provision which the Court may properly make in default of testamentary provision is that which a just and wise testator would have thought was their moral duty to make in the interests of the person concerned had they been fully aware of all the relevant circumstances.”
(References and footnotes omitted.)
[18][2004] VSC 425
17 Mandie J went on to observe that whether a grandchild could succeed in a claim depends on all the facts of the case, and ought not be restricted by an a priori approach based on the relationship of ‘grandchild’. At paragraph [64], he said:
“… grandchildren can neither be ‘ruled in’ nor ‘ruled out’ until all the facts are examined. … .”
18 This was adopted in Iwasivka v State Trustees Ltd[19] and it applies in the present case to the relationship of the plaintiff and the deceased.
[19][2005] VSC 323 at paragraph [12]
19 Counsel for the defendant referred me to Napolitano v State Trustees Ltd,[20] a decision of Mukhtar AsJ, who summarily dismissed a claim by a nephew by marriage, and said:
“Cases in this court where successful claims have been made by, for example, a niece from an aunt have demonstrated strong facts are needed to show that the aunt or uncle were like de facto mothers or fathers or had otherwise played a part in the life of a niece of (sic) nephew so as to give rise to a responsibility. It requires a demonstration at least that the deceased has taken, in the many ways possible in life, some responsibility for the child’s care, upbringing and development or welfare — see for example Iwasivka v State Trustees. In that case the judge accepted evidence from the claimant that ‘the deceased was the closest thing to a mother she ever had’.[21]
…
… But it is important to remember that courts do not intervene just because it would have been nice or good of a testator to give a benefit. An uncle ought to be able to develop a relationship with a nephew without apprehending the law might impose a responsibility to provide for him. That is why courts have found it convenient and useful to resort to the concept of a moral duty and a moral claim in deciding whether provision should be made to a claimant: see Blair v Blair, and Vigolo v Bostin, and see the digest of cases in Jackson v Newns.”
[20][2012] VSC 345
[21]At paragraph [28]
20 In Schmidt v Watkins,[22] Harper J attempted to clarify the circumstances in which the moral duty may arise for extended family or others:
“… It is equally clear that a duty to provide in one’s will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. … Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. … .
… it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors.
To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. … And the question: ‘Should I reward my benefactor?’ is very different from the question: ‘Do I have a duty to X to make provision for his or her proper maintenance and support?’ … .
In saying this, I acknowledge my obligation to have regard to ‘any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased’. Such contribution may perhaps give rise to a duty to make adequate provision for the proper maintenance and support of the benefactor/applicant. But generally it will not do so of itself. Generally, it will be a factor in the creation of such a duty, or will enlarge a duty already in existence; as when a spouse or child of the deceased contributed to the deceased’s wealth by working at less than award rates in the family business. … .” [23]
[22][2002] VSC 273
[23]at paragraphs [22] – [25]
21 There are three decisions that are particularly relevant to this case. Those decisions are the judgment of Hansen J in Iwasivka v State Trustees,[24] which related to a claim by a niece by marriage; the judgment of Mukhtar AsJ in Napolitano v State Trustees,[25] a claim by a nephew by marriage, and the judgment of Zammit AsJ in Moussageas v State Trustees Ltd,[26] a claim by a cousin.
[24]Supra
[25]Supra
[26]In the Matter of the Will of Vourdoulidis [2013] VSC 34 (“Moussageas”)
The evidence
22 The plaintiff relied upon two affidavits sworn 31 August 2012 and May 2014. The plaintiff was cross-examined. The plaintiff’s evidence was uncorroborated.
23 The defendant relied upon three affidavits: An affidavit of Pauline Zeidan, senior estate representative, employed by the defendant, who deposed to the value of the estate and its administration; an affidavit of Adelaide Tapper, senior genealogist, who conducted research and investigations into the families of various persons with a view to identifying and locating relatives in Italy; finally, an affidavit of Jasmine Berger, senior solicitor of the defendant, who made enquiries as to the sole surviving sibling, and her financial position and needs. None of the deponents were cross-examined.
24 The estate presently consists of cash of $373,541.69, subject to tax and legal fees.[27] This does not reflect the costs of this proceeding.
[27]As at 6 May 2014
25 It was not in issue that the deceased never married during his life, nor did he ever have a domestic relationship or children. The deceased had ten siblings: six predeceased him (four with issue); one is alive, Maria Fiorillo, living in Italy; three siblings died after 14 October 2009.[28] There are 29 surviving nieces and nephews of the deceased, most of whom reside in Italy. There is unlikely to be any difficulty in distributing the estate.[29]
[28]Defendant’s Court Book page 20 at paragraph [5]
[29]Defendant’s Court Book page 21 at paragraph [9]
26 The plaintiff says she was the carer of the deceased.
27 The plaintiff was born in 1961. She is the daughter of Vincenzo and Romana Fiorillo. The deceased was her paternal uncle. The plaintiff’s mother, Romana, is alive and the plaintiff has a brother and two sisters. They are the only members of the deceased’s family living in Australia.
28 The plaintiff is married to Gennaro Mastroianni and they have two children, Julia, born in 1989, and Andrew, born in 1991.
29 The plaintiff’s evidence was the deceased was born on 25 July 1914. He was one of eleven children and was born in Italy. He migrated to Australia in 1966. On his arrival, he could not speak English, and stayed with her parents and their family in Richardson Street, Carlton. He was a carpenter by occupation. The deceased left the family home in 1973 to find work in Queensland, where he stayed for a period of approximately four years, returning to her parents’ home.
30 In 1978, the deceased worked for the plaintiff’s father as a carpenter. Following the completion of a restaurant in Carlton and the subsequent acquisition of the business by the plaintiff’s father, the deceased commenced working for the plaintiff’s father in the restaurant, principally as a barista.
31 In 1984, the deceased returned to Italy. The plaintiff’s father purchased a ticket for him to travel to Italy and provided him with approximately $20,000.
32 The deceased remained in Italy for approximately two years and returned to Australia in about 1986 and commenced living in Brunswick Road, Brunswick. At some time, the deceased was injured when, as a pedestrian, he was crossing Lygon Street, Brunswick and was hit by a motor vehicle. He suffered injuries which permanently prevented him from working. He received a Disability Pension thereafter.
33 In December 1999, the deceased was involved in another motor vehicle accident in which he was a passenger. He received severe head injuries and was in a coma for approximately six weeks. During this period, the Transport Accident Commission liaised with the plaintiff. The plaintiff said she felt responsible for the deceased’s welfare.
34 While he was still in a coma, the deceased was transferred to Ivanhoe Manor, a rehabilitation facility close to where the plaintiff lived. When he came out of the coma, he could not speak, focus on matters and did not recognise anything or anyone. When admitted to Ivanhoe Manor, the deceased was placed on a mattress on the floor in a darkened room which the plaintiff said distressed her. The deceased’s medical condition deteriorated, as he was suffering from a condition caused by fluid on the brain. He was re-admitted to The Alfred hospital on another two occasions. Due to a build-up of fluid on the brain, he underwent surgery involving insertion of a shunt into his head to drain the fluid. The plaintiff deposed that she visited him daily at The Alfred hospital. After he was finally released from hospital, he returned to Ivanhoe Manor.
35 When the deceased returned to Ivanhoe Manor, the plaintiff deposed that she visited him almost every day and brought food to the deceased. In re-examination, the plaintiff said when the deceased was in Ivanhoe Manor, she would see him pretty much on a daily basis.
36 The deceased grew stronger and required more movement. After about a year of rehabilitation at Ivanhoe Manor, he was placed in a nursing home. The plaintiff deposed that it became clear the deceased would have to be moved from Ivanhoe Manor to be placed in a nursing home more attuned to dealing with persons with disabilities. She liaised with the social worker at Ivanhoe Manor and after some months, located a facility called Bellbrae, in Ivanhoe, and the deceased moved to Bellbrae.
37 The plaintiff negotiated with the Transport Accident Commission to provide a carer for eight hours a week. About once a week, the carer would bring the deceased to her home or workplace, and on occasion, take him to a coffee lounge.
38 After the deceased became frail, the carer would visit him at the nursing home and if he was well enough, wheel him to the plaintiff’s workplace. The carer would read the newspaper and play cards with the deceased. The plaintiff agreed the care provided by the carers was excellent.
39 In cross-examination, the plaintiff said the carer would wheel him across the road to her work and she would have a coffee and chat to the deceased for approximately one hour. Sometimes that would occur twice a week, but it depended on the deceased’s health.[30]
[30]Transcript 15, Lines 1-2
40 In re-examination, the plaintiff said that when the deceased was placed in the Patricia Gladwell Nursing Home[31] which was opposite her work, she said:
“I would try stick my head in there and see him and make sure he was ok on most days.”[32]
[31]I have presumed Bellbrae and the Patricia Gladwell Nursing Home are the same entity.
[32]Transcript 22, Lines 20-22
41 On 13 November 2000, the plaintiff was appointed the administrator of the deceased’s affairs by the Guardianship List of the Victorian Civil and Administrative Tribunal. She continued to be the deceased’s administrator until his death.
42 The plaintiff’s evidence was that she was appointed the plaintiff’s Litigation Guardian in respect to Supreme Court proceedings commenced in 2000 as a result of the transport accident in which the deceased suffered a head injury. The deceased was represented by Mr Trevor Monti of Counsel. The proceedings were settled and the sum of approximately $205,000 became available and was paid to the Senior Master of the Supreme Court for his administration as funds held on behalf of a disabled person. These funds (with accretions) largely form the estate that was available following the death of the deceased.
43 The plaintiff said Grace Placencio was the solicitor engaged on the deceased’s behalf. She deposed that she assumed liability for any costs orders that may have been made against the deceased. The plaintiff was asked whether it had been explained to her that she would be facing a costs bill if the deceased lost his case. She said:
“They – they told me that I would be responsible for his – as a litigation guardian I would be responsible to see this through, so I needed to – to do whatever I had to do for it to go to court.”[33]
[33]Transcript 20, Lines 5-10
44 The plaintiff was asked whether anyone told her it would be likely that she would have to pay a sum of money. She replied:
A:“No – well, sums of money were paid, sir, before it got to court.
Q:That it was likely that you would not have that money repaid?---
A:No, sir. Well not to my knowledge. I can’t remember, sir, what exactly they told me.”[34]
[34]Transcript 20, Lines 11-16
45 The plaintiff’s evidence was that before the deceased received any settlement money, she paid for what he needed in the hospital and at Ivanhoe Manor. She paid for his clothes and his basic needs, for example shaving needs, until she received the VCAT Administration Orders. After she became his administrator, she was able to pay for things out of the deceased’s funds and his pension. She said his legal expenses came out of the money the deceased received from the Transport Accident Commission.
46 The plaintiff said that her siblings were not interested in helping her uncle.
The assets and liabilities of the Plaintiff
47 In her affidavits sworn 31 August 2012 and 17 May 2014, the plaintiff deposed as to her assets and liabilities:
· 21 Little Elgin Street, Carlton
The property is owned by the plaintiff and her husband, and is where they currently reside. It was purchased in 2011 for $1.29 million. Prior to moving into the house, it was rented. She estimates her half interest in the property at $525,000.
· Flat 2, 217 Mitchell Street, Brunswick
This property was inherited from the plaintiff’s father. It is tenanted and the plaintiff receives rent of $1,600 per month. She estimates the property is valued at $398,000.
· 13 Nicholson Street, Coburg
There is no registered mortgage on the property. The property is owned by the plaintiff and her husband. The family business operated under the name Mezair Pty Ltd is run from that property. The plaintiff said the company does not pay rent. She valued her half interest at $240,000.
· 67 Moreland Road, Coburg
The property, purchased in 2005, is owned by the plaintiff and her husband. There is no mortgage on the property. The rental income is $500 per week. She valued her half interest at $227,500.
· 20C Hubert Road, Ivanhoe East
This property was owned by the plaintiff and her husband. It was sold for just under $1.6 million, and the sale proceeds were used to purchase the Elgin Street, Carlton property.
48 The plaintiff said the values for the properties were provided to her by her accountant, who relied on the valuations in the current rates notices.
49 The plaintiff’s evidence was that there was one mortgage for the properties. She deposed that she has an indebtedness in respect of the abovementioned properties at approximately $500,000. It was unclear whether the indebtedness of $500,000 was the joint liability of both the plaintiff and her husband.
50 The plaintiff is a director and shareholder in the family company, Mezair Pty Ltd, which operates the family business, importing tools from China. Both the plaintiff and her husband are employed by the business and their incomes vary from time to time. She said in a good year she would have received $30,000, and her husband would have received $40,000. Over the last few years, business has been very quiet. At the time of swearing her second affidavit on 17 May 2014, she had been informed by her accountant, Mr Vince Mollese, that due to the very poor retail trading conditions over the last twelve months, no wages could have been paid to herself or her husband. The plaintiff agreed that up until a year ago, she received income from the family business.
51 The plaintiff agreed she has bank accounts but no money in them. She has an account that contains approximately $30,000, which is her brother’s money. She looks after the money as her brother is bipolar and has a gambling addiction. She does not use that money for her own needs.
52 The plaintiff said she thought that she and her husband had about “20 something” in superannuation.
53 She owns a six-year-old Peugeot 2000 motor vehicle and her husband has a car under lease.
The Plaintiff’s credit
54 While the evidence from the plaintiff as to the relationship between the deceased and the plaintiff, and as to her financial affairs is uncorroborated, the plaintiff impressed me as being an honest person. She answered questions as best she could, and she did not overstate her case. The plaintiff answered questions in a direct way. However, her evidence was vague or imprecise on occasions, which I conclude was indicative of her level of education and her lack of familiarity with the Court process. For example, she said that she and her husband had “$20,000 or something” in superannuation. Further, her evidence in respect to her visits while the deceased was in care was confusing. I accept that was due to her inexperience with legal proceedings and the need for accuracy.
The submissions of the Plaintiff
55 The plaintiff was a niece and carer of the deceased. The plaintiff was the only person in Australia who looked after the needs of the deceased following a transport accident in December 1999, including arranging care and accommodation. Eventually, she became the deceased’s administrator pursuant to an order of the Guardianship List of VCAT on 30 November 2000, a position she held until the death of the deceased. She acted as his Litigation Guardian in legal proceedings arising from the transport accident. The damages award from those proceedings form the substance of the estate of the deceased. As Litigation Guardian, she put herself in a position of risk as to costs.
56 Counsel for the plaintiff submitted that an analogy for the plaintiff is a dutiful daughter, and that she is a person who the deceased (if he had the ability) would have recognised as being entitled to take upon his bounty and would have made proper provision. Counsel submitted that the plaintiff seeks proper provision by way of a “nest egg” in the sum of $200,000. Counsel accepted that the plaintiff was not an impoverished person, but submitted she did not have much cash. Accordingly, an award of the amount sought would be appropriate.
The submissions of the Defendant
57 The defendant submitted that the Court must have regard to the statutory factors in s91(4)(e)-(p).
58 In particular, the defendant distinguished the case of Iwasivka v State Trustees,[35] which was also a claim by a niece, in that:
[35]Supra
(a) this is a small estate, not large;
(b) this plaintiff has no significant health needs;
(c) this plaintiff has no financial needs, despite not drawing a salary this last year;
(d) this plaintiff has a capacity to earn income;
(e) this plaintiff is employed and actually earns income;
(f) this plaintiff did not have a close emotional parent/daughter-like relationship with the deceased – the evidence speaks to assistance with legal matters, and an unspecified period of visiting. Further, Counsel for the defendant submitted that the nature of the plaintiff’s relationship with the deceased was vague and uncorroborated: Criteria under s91(4).
59 I now consider the factors which s91(4) requires the Court to have regard to, avoiding, so far as possible, unnecessary repetition of the facts.
Section 91(4)(e) – Family or other relationship
60 The plaintiff was the niece of the deceased, her father being the brother of the deceased. I accept the plaintiff’s evidence that in 1966, on arrival in Australia, the deceased lived with her parents and their family in Carlton, and for a period commencing in 1978, worked with the plaintiff’s father. He went to Italy in 1984, where he remained for two years, returning to Australia in about 1986, when he commenced living in Brunswick. The plaintiff took on the care of the deceased following his accident on 5 December 1999, which left him with head injuries and brain damage. The plaintiff’s evidence was that she arranged suitable accommodation for the deceased, visited him regularly, provided some meals and arranged professional care.
61 I accept the plaintiff’s evidence that other members of her family, her siblings and mother, did not get involved with the deceased’s care. I accept that she was the closest relative to the deceased.
62 The relationship between the plaintiff and the deceased in the present case cannot be described as akin to the relationship found in Iwasivka v State Trustees Ltd.[36] In that case, the Court found the deceased was the closest thing to a mother the applicant ever had; the true characterisation of the relationship between the deceased and the applicant was that of mother and daughter. It continued throughout the plaintiff’s life, into adulthood. In that case, the plaintiff’s evidence was supported by further evidence. In the present case, there is no evidence as to the nature of the relationship between the plaintiff and the deceased prior to his acquired disability. There was no significant evidence of a bond in the nature of a parent/child as in Iwasivka.
[36]Supra
63 In Unger v Sanchez,[37] a neighbour of the deceased was successful in her claim for provision. I also distinguish the plaintiff’s relationship with the deceased from that of the plaintiff in Unger v Sanchez. To lend the words of Whelan J in Webb & Ors v Ryan & Anor:[38]
“In Unger, on the other hand, a neighbour of the deceased essentially took on a role equivalent to that of a most dutiful daughter. The trial judge found there that the applicant had displayed what he described as ‘quite extraordinary’ dedication and self-sacrifice, and had given ‘invaluable and indispensable’ support to the deceased over a considerable period. … .”
[37][2009] VSC 541
[38][2012] VSC 377 at paragraph [26]
64 In this case, the plaintiff’s material gives the impression of the mechanics of arranging care and accommodation for the deceased, who was significantly incapacitated. I accept she visited the deceased regularly and, on occasions, brought food. Yet there is insufficient evidence before me to bring to the relationship that ‘particular quality’[39] that would attract a responsibility for the deceased to provide for the plaintiff. There is no evidence that the plaintiff saw herself as a daughter or that her uncle was akin to a father. There is insufficient evidence of a close bond of “love or affection” or similar emotions being involved in the relationship. It was a relationship that arose when the deceased required assistance after 1999. The plaintiff assumed a duty towards her uncle and ensured that his interests were taken care of. I accept that this duty probably continued to the time of death of the deceased, although there was no direct evidence as to this. I accept that the plaintiff was a caring and dutiful niece.
[39]Schmidt v Watkins (Supra) at paragraph [22]
65 In the case of Moussageas,[40] the plaintiff was successful in his claim despite the fact that he was not a child of the deceased, nor did he claim to have a relationship like that of a parent/child. Nonetheless, important facts in Moussageas can be distinguished from the present case. The plaintiff in Moussageas (Theodosis) provided support to the deceased (Nikos) that was significantly more demanding than the support given to the deceased in the present case. The relationship was coloured by Nikos’ lifelong schizophrenia and challenging behaviours. Nikos was aggressive, often ran away, and engaged in conflicts with people that required Theodosis to intervene. In the present case, the deceased placed no such demands on the plaintiff after he was injured. The care provided was much more orderly, and supported by professional carers and care accommodation.
[40] Supra
66 Theodosis’ evidence in Moussageas was corroborated by an independent witness. There was also evidence that certain beneficiaries considered Theodosis should receive a share of Nikos’ estate. There was no corroborating evidence in the present case that would provide further context to the plaintiff’s relationship with the deceased in this proceeding.
67 There are also significant differences between the respective plaintiffs in Moussageas versus the present case in respect of their financial and health needs. It is convenient to further distinguish Moussageas, having regard to the remaining s91(f)-(o) factors, and I will do so where I have considered it relevant.
Section 91(4)(f) – Any obligations or responsibilities of the deceased to the applicant or others
68 Counsel for the plaintiff submitted that the deceased had no obligations or responsibility to any person save and except for the plaintiff. The evidence was that after he arrived in Australia in 1966, where he stayed until approximately 1984, he returned to Italy for a period of approximately two years, then returned to Australia in approximately 1986. I accept, on the evidence, he had not been involved with his siblings for many years and certainly not after the transport accident in December 1999. There is no other applicant with regard to any claim on the estate, and the entitlements of the beneficiaries solely arise because of the intestacy provisions. I accept that the deceased had no obligation or responsibility to make any provision to the plaintiff or the beneficiaries.
Section 91(4)(g) – The size and nature of the estate
69 The estate is very modest at $373,541.69 in cash.
70 In Iwasivka v State Trustees Ltd,[41] his Honour conceded that the deceased’s estate was of such a size that she could readily have provided for the plaintiff. In that case, the deceased’s estate was $1.2 million. In this case, the estate is very modest.
Section 91(4)(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 hearing and for the foreseeable future
[41]Supra
71 The plaintiff’s financial position is set out in the affidavit material. The evidence is that the plaintiff and her husband own real property. Three properties are jointly owned with her husband and one property is solely owned by the plaintiff. In answer to a question I asked, she indicated that the valuations of the properties had been provided to her by the accountant, who relied upon valuations contained in the current rates notices. Counsel for the defendant indicated the real estate values were not in dispute. The plaintiff informed the Court that three properties were the subject of a mortgage, although it was unclear over what property the mortgage existed.
72 The plaintiff’s affidavit material did not address such matters as superannuation, cash savings, shares or other investments, valuations of vehicles, business income and rental income from the real estate portfolio and income generally.
73 In cross-examination, the plaintiff elaborated on some of these matters. The plaintiff stated that she and her husband have about “20 something” in superannuation. She owns a six-year-old Peugeot 2000 motor vehicle, and her husband leases a motor vehicle. It was accepted by the defendant that the plaintiff had no significant cash savings and no shares.
74 On the evidence available, I estimate that the plaintiff alone has net assets between $890,000 and $1.14 million.[42]
[42]Depending on the legal description of the mortgage
75 With respect to income overall, the plaintiff’s evidence was imprecise.
76 The plaintiff works as a manager. She was not pressed for details about her individual work capacity.
77 There was limited evidence of the plaintiff’s earnings in previous years. In cross-examination, the plaintiff conceded that the family business had, in the past, provided an annual combined income of about $70,000 to her and her husband, but it varied. The plaintiff’s evidence was that she and her husband would not be receiving wages from the business this financial year due to poor trading conditions over the last twelve months. There was no evidence that there was any stress in repaying the mortgage.
78 The plaintiff said she received rental income of about $500 per week from one property[43] and $1,600 per month from another. The plaintiff’s aggregate annual rental income is therefore in the vicinity of $31,200.
[43]This property is jointly owned and I have assumed the plaintiff is entitled to $250 per week.
79 There was limited evidence as to the plaintiff’s expenses and outgoings, whether current or future.
80 Taking into account all the evidence provided, I cannot be satisfied as to the true extent of the plaintiff’s financial position. Her own evidence is imprecise on the material, and it was not supported by other documentary evidence.[44]
[44]I have addressed the financial resources of the plaintiff’s husband under the discussion of s91(4)(n) of the Act.
81 I rely upon what Ormiston J said in Collicoat & Ors v McMillan & Anor:[45]
“Thirdly, and importantly in this case, it should be noted that the majority in Singer’s Case [Singer v Berghouse (No 2) (1994) 181 CLR 201 at 213] approved part of the reasoning of Sheller, JA set out below, which appears at 213 in the joint judgment:
‘I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and ... to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant.’
Sheller, JA's comments, approved by the High Court, are of equal application in this jurisdiction and represent what has always been accepted as a necessary pre-condition for the exercise of the statutory powers contained in Pt4 of the Administration and Probate Act. In other words ‘need’ must be demonstrated before the jurisdiction is exercised. It follows that those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support. … .”
[45](Supra) 820 at paragraph [47]
82 I am entitled to infer that had any such evidence been given with specificity, it would not have assisted the plaintiff’s case.
83 Furthermore, based on the evidence that was provided, the plaintiff has not disclosed any specific, or generally significant financial needs. In Moussageas,[46] the plaintiff was found on the evidence to have significant financial needs. He had no real earning capacity and received a disability pension due to a back injury. He had no other member of his household who could assist him. It was accepted that he had significant expenses, and his financial circumstances were described as “difficult”. When having regard to such case authorities on the financial needs of the plaintiff, it is important to bear in mind that each case rests upon its own facts.
[46]Supra
84 In the present case, I am not satisfied that the plaintiff’s circumstances gave rise to any financial need. Counsel stated that the plaintiff was “not an impoverished person, but… doesn’t have much cash,”[47] and that any award would provide a “nest egg” for the plaintiff. It was accepted by the defendant that the plaintiff had no significant cash savings. Yet her evidence with respect to income and expenses was imprecise and difficult to scrutinise. Overall, I cannot be satisfied of the plaintiff’s true financial position for the reasons discussed above. I take the view that no significant need has been demonstrated by the plaintiff. The plaintiff has not identified any specific purpose or use, or need for further provision.
Section 91(4)(i) – Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate
[47]Transcript page 6, line 17
85 The plaintiff deposed that her health is “reasonably good”; accordingly no need is apparent in this respect.
86 There is evidence that Maria, the sole surviving sibling of the deceased, is a resident in a nursing home. Maria lives on 600 Euros per month, which is currently exhausted on accommodation, care and medical needs. She recently had a kidney disease and is under the care of a nun. She is “in a very poor state of health”.
Section 91(4)(j) – The age of the applicant
87 According to Ms Tapas’ research, the plaintiff’s date of birth is 1961, making her fifty-two or fifty-three.
Section 91(4)(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
88 Counsel for the plaintiff submitted that as a result of her role as Litigation Guardian for the deceased during his lifetime, this contributed substantially to the value of the estate. I accept that as a result of the successful litigation, the estate was enhanced. Counsel for the plaintiff also submitted that by acting as Litigation Guardian, she put herself at risk in relation to costs. There is no evidence that the litigation was risky, or that the plaintiff apprehended a real risk as to costs.
89 The plaintiff’s evidence was that her father provided some financial assistance prior to the deceased travelling to Italy in 1984. I accept that the assistance was provided by the plaintiff’s father and not the plaintiff.
90 The plaintiff deposed to limited contributions to the deceased’s welfare, such as meals, arranging professional care for him, and visits. I accept that these contributions are not beyond the community expectations of a caring and loyal niece.
Section 91(4)(l) – Any benefits previously given by the deceased person to any applicant or to any beneficiary
91 There was no evidence of any benefits given by the deceased to the plaintiff at any time.
Section 91(4)(m) – Whether the applicant was being maintained by the deceased person before that person’s death
92 There was no evidence the deceased assumed any responsibility for the plaintiff’s maintenance before his death.
Section 91(4)(n) – The liability of any other person to maintain the applicant
93 The plaintiff is married, and there was very limited evidence of the husband’s financial position. The evidence is that the plaintiff’s husband holds the other interest in the part-held real properties of the plaintiff. His income is greater than the plaintiff’s, and he also leases a motor vehicle. There is no other evidence that corroborates the extent of his assets as deposed to in the plaintiff’s second affidavit. Due to the vagueness of the material provided, I take the view that the plaintiff has not disclosed the financial resources available to her through her husband.
94 The plaintiff received an inheritance from her late father. Her mother is still alive. Her mother received an inheritance from her late husband.
Section 91(4)(o) – The character and conduct of the applicant or any other person
95 I accept the character and conduct of the plaintiff are matters to be counted in her favour. Since December 1999, the plaintiff provided the deceased with support and care following his transport accident. She was the only member of the deceased’s family to do so.
Section 91(4)(p) – Any other matter the Court considers relevant
96 As the deceased died intestate, the intestacy provisions of the Act apply, and together function as the will of the deceased for the purposes of this proceeding. The deemed will distributed the net assets in eighth shares as follows:
(a) One part each per stirpes to the issue of each of the four siblings of the deceased that predeceased and left issue; and
(b) One part each of the estate of each of the three siblings of the deceased that survived him but have since died; and
(c) One part of the sole part to the sole sibling of the deceased that is alive today, Maria Fiorillo.
Two siblings predeceased without leaving children.
97 The plaintiff, as one of four living children of Vincenzo Fiorillo, brother of the deceased, therefore benefits one-quarter of one-eighth. Without any allowance for the costs of litigation or remaining costs of distribution, this represents a division of approximately $11,673 to the plaintiff.
Responsibility to make provision
98 Counsel for the plaintiff submitted that, in the circumstances, the deceased had a responsibility to provide for the plaintiff. The plaintiff provided care and devotion to the deceased. The deceased was seriously injured in a transport accident, suffering permanent brain damage for the rest of his life. The plaintiff is a niece who provided assistance, including becoming the Litigation Guardian, putting herself at risk as to costs and following the litigation to a settlement. The only reason the estate is in its current position is that damages were awarded. The efforts of the niece go far beyond the normal relationship that exists between an uncle and niece. On the other hand, Counsel for the defendant submitted that the nature of the plaintiff’s relationship with the deceased was vague and was uncorroborated.
99 I accept that the plaintiff acted as Litigation Guardian in relation to the Supreme Court proceedings brought as a result of the transport accident. I accept that her contribution was taking a minimal risk in relation to costs; her evidence in cross-examination suggested that she had an unclear understanding of what was involved.
100 There were no peculiar factors to consider in relation to the plaintiff’s station in life. She acknowledged that her health was reasonably good. Beyond this limited evidence put by the plaintiff, she failed to make her case based on the statutory factors I am required to consider.
101 I accept that the nature of the relationship between the plaintiff and deceased lacked the necessary quality to attract a moral duty to provide. As confirmed in the authorities, the decision before me is not whether to reward past kindness and support.[48] I have considered all the statutory factors in contemplating the duty. I am not satisfied that, on the evidence available, the plaintiff has established need. Having regard to prevailing community standards, a wise and just testator, fully aware of all the relevant circumstances, would consider there was no moral duty to make additional provision for the plaintiff beyond the distribution by intestacy.
[48]Zammit AsJ in Moussageas at paragraph [164], citing Hansen J in Iwasivka v State Trustees Ltd (supra). Schmidt v Watkins (supra)
102 I accept that there should be no further provision made for the plaintiff beyond the intestacy provisions.
Other matters
103 Counsel for the defendant sought approval for a fixed amount to be distributed to Maria, given her immediate need and her age. I consider that appropriate; however, the extent of distribution will be determined after I hear the parties on costs.
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