Meinecke v Van Dyke
[2013] VCC 333
•8 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
IN THE MATTER of an application under Part IV of the Administration and Probate Act 1958, and
IN THE MATTER of the will and estate of FRANZ MORYS, deceased
Case No. CI-11-05854
| EVA MEINECKE | Plaintiff |
| v | |
| RIA VAN DYKE and GEORGE SCHEFFEL (who are sued as Executors of the Will and the Estate of FRANZ MORYS, deceased) | Defendants |
---
JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2013 | |
DATE OF JUDGMENT: | 8 April 2013 | |
CASE MAY BE CITED AS: | Meinecke v Van Dyke & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 333 | |
REASONS FOR JUDGMENT
---
SUBJECT: TESTATOR'S FAMILY MAINTENANCE
CATCHWORDS: Application for provision by stepdaughter – natural mother and stepfather divorced – property division between the natural mother and stepfather – estrangement – no provision made in the will of the deceased stepfather – whether the stepfather owed a responsibility – quantification of provision
LEGISLATION CITED: Administration and Probate Act 1958, Part IV
CASES CITED: McKenzie v Topp [2004] VSC 90; James v Day [2004] VSC 290; Freeman v Jacques [2005] QSC 200; Keets v Marks [2005]; Powell v Monteath [2006] Qd R 473; Robertson v Koska [2010] VSC 134; McDougall v Rogers; Estate of James Rodgers [2006] NSWSC 484; Contencin v Tasmanian Perpetual Trustees [2010] TASSC 3; Vincent v Rae [2006] VSC 346; Hogan v Clarke [2002] NSWSC 386; McCann v Ward [2012] VSC 63; Blair v Blair (2004) 10 VR 69; Unger v Sanchez [2009] VSC 541
JUDGMENT: An order for provision out of the estate of the deceased.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms U Stanisich | Macpherson & Kelley |
| For the Defendants | Ms C Sparke SC | Cole & Co |
HIS HONOUR:
Introduction
1 By an Originating Motion filed on 2 December 2011, the plaintiff seeks provision from the estate of the deceased pursuant to Part IV of the Administration and Probate Act 1958.
2 Ms U Stanisich of Counsel appeared for the plaintiff and Ms C Sparke Senior Counsel, appeared for the defendants.
3 The plaintiff’s solicitors prepared a Court Book (“CB”) which contains all of the documents relied upon by the plaintiff and the defendants. The following evidence was adduced at the trial:
· Eva Meinecke (“Eva”) gave evidence and was cross-examined.
· Dierk Meinecke (“Dierk”) gave evidence and was cross-examined.
· George Scheffel (“George”) gave evidence, but was not cross-examined.
· Eva tendered the following documents:
§ an appraisal by Hocking Stuart, real estate agents, dated 1 March 2013 of 30 Cinerea Avenue, Ferntree Gully: Exhibit A;
§ from the Court Book, pages 10-79, 101-114 and 136-213: Exhibit B.
· from the Court Book the defendants tendered pages 80-81, 82-100, 115-129 and 130-135: Exhibit 1.
Background
4 Klara Morys (“Klara”) is eight-nine years of age. She was born in 1924 in Germany.[1] She is the mother of Eva. Franz Morys (“Franz”), the deceased, was born on 1 December 1926 in Germany. He died on 10 April 2011 when he was eighty-five years of age. Eva was born in 1945. She is now sixty-eight years of age. She was born in Germany.
[1]She did not refer to her actual date of birth in her affidavit sworn 22 February 2013
5 Eva is the only child of Klara. Nothing is known of Klara’s father. Klara made no material reference to Eva’s natural father in her affidavit sworn 22 February 2013.
6 Klara met Franz in 1947 in Germany. They were firstly friends, and then developed an intimate relationship. That intimate relationship developed into a domestic partnership at some stage after they met. From the time of the commencement of the domestic relationship, Klara and Franz lived together until 1956, when Franz migrated to Australia.
7 Klara and Eva remained in Germany until 1960, when they migrated to Australia. The relationship between Klara and Franz did not stall in the time that they were apart. They communicated by telephone and mail. Franz wrote to Eva, and sent presents to Klara and Eva for birthdays and Christmas, and flowers on other occasions. Upon Klara and Eva arriving in Australia, they were reunited with Franz, after which they resumed their relationship as a family unit. Klara and Franz married in April 1961.
8 Klara and Franz had an apparently harmonious relationship for some time before their relationship soured. They lived together until about 2005, when they separated. Eva lived with Klara and Franz in their matrimonial home until she moved out when she was in her late teens. She moved out because she had a disagreement with Franz. She went and lived in a rented room. She returned to the matrimonial home when she was nineteen or twenty years of age and remained there are until she married Dierk in 1969 when she was twenty-four years of age.[2]
[2]Transcript 17-18
9 Eva’s relationship with Franz was also apparently harmonious over the time that she lived with Klara and Franz in the matrimonial home except for the occasion when she moved out of the matrimonial home. Franz was the only father she had known. Her relationship with Franz had all the hallmarks of a father-daughter relationship despite the fact that Franz was not her natural father. Eva was a bridesmaid at the wedding of Klara and Franz. Steps were taken by Franz to adopt Eva, but were not completed. Eva took Franz’s surname of Morys as her own, and was known by that surname until she married Dierk.[3]
[3]CB 12-13
10 After Eva married Dierk, there was no palpable change in Eva’s relationship with Franz. When Eva and Dierk had children they were treated as the grandchildren of Franz. Like most grandparents, Klara and Franz babysat Eva and Dierk's children. Eva and Dierk have two children – Klaus who was born on 17 September 1972 and Heidi who was born on 5 October 1975. Franz gave Klaus $5000 on the occasion of his eighteenth birthday in 1990 and gave the same amount to Heidi on the occasion of her eighteenth birthday in 1993. It was provided to them because Franz had promised to buy them a car when they turned eighteen years of age.
11 As the marriage of Klara and Franz entered 2005 it was reaching its end. Klara described Franz as being in the habit of drinking alcohol at the Inkerman Hotel in Saint Kilda where he would often go after a day's work. She said that he had a problem with alcohol to the extent that he sometimes became aggressive and abusive towards her when he had drunk too much. His problem with alcohol, and its effect upon his behaviour, contributed to their separation and ultimately to their divorce. Otherwise, Klara described Franz as being a quiet man who was very shy and reserved when he was sober.[4]
[4]CB
12 Eva said that she became estranged from Franz from about 2005. The reason for the estrangement was Franz's drunkenness, aggression and the treatment of Klara.
13 The defendants challenged the premise upon which Eva said that the estrangement began from about 2005. In the context of that cross examination Eva said that Klara and Franz owned a property at Macclesfield which they sold in 1986. They divided the proceeds of sale. However, Eva denied that the marriage was souring in 1986. She said that the marriage was still alright. Klara and Franz subsequently purchased a property at Myrtle Street, Elsternwick.
14 Eva was asked whether she recalled her mother complaining to her about a dispute which she and Franz had over the payment of bills. She said that Klara did inform her that there was such a dispute which may have occurred in around 1987 or 1990, however, it was my impression that Eva really did not know when she heard those complaints from Klara. In any event it would appear that Klara and Franz then began paying bills separately.[5]
[5]Transcript 21-22
15 The cross examination also went to whether Klara cared for Franz properly; whether she was paying her share of the bills that came into their household; whether Klara, at times, became agitated with Franz; whether Eva effectively sided with her mother and ignored Franz, and whether Franz's drinking habit worsened because of the souring of his relationship with Klara.[6]
[6]Transcript 24-39
16 Klara made a significant number of complaints of a serious kind to Eva about Franz's behaviour. In her affidavit sworn 27 June 2012 she referred to Franz preventing Klara from using the telephone and locking it up in a wooden box; turning off the electricity, water, gas and heating; nailing the bathroom door shut; yelling abuse at Klara when he was drunk, and on one occasion Klara rang Eva in 1994 or 1995 because Franz was screaming at her and being abusive, which made her afraid of being assaulted by him, and Franz ringing Eva occasionally in the middle of the night to tell her how bad Klara was behaving.[7]
[7]CD 14-15
17 Whilst there were a number of allegations made by Eva which were challenged during cross examination, many of them were premised upon whether Klara complained to Eva of things which Franz did or said. It was cross examination designed to prove matters of that kind rather indirectly when they could have been tested directly by cross examination of Klara. Klara swore an affidavit on 22 February 2013 setting out some of the background of her relationship with Franz, yet she was not required for cross examination.
18 What became clear to me was that the relationship between Klara and Franz was souring in 1994 or 1995, and around the time when they sold the property at Macclesfield. They divided the proceeds of sale, and then paid bills separately. It was probable that there were occasions when Klara did not pay her share which saw Franz engage a solicitor to act on his behalf to write to Klara demanding that she make good her share of those bills.[8]
[8]CD 96-97
19 What also became clear was that Franz was given to drinking excessively, and on occasions became aggressive, potentially violent, and was given to erratic behaviour of the kind I have referred to in paragraph 16 above. During cross examination Eva elaborated on her relationship with Franz. She said that she did not have "Franz come over" to visit. She had telephone contact with him. On most occasions when he rang he was drunk. She described the matters on which Franz spoke to be nonsense. She told him to ring back when he was sober. She said that she had limited contact with Franz from about 1995. She said that when she visited the matrimonial home there were limited friendly conversations with Franz. There was a measure of social contact in that Eva's family had Christmas lunch with Klara and Franz.[9]
[9]Transcript 33-34
20 After Klara and Franz separated in about 2005. The eventually divorced. They negotiated a settlement of their property interests. The matrimonial home was sold in 2005. The proceeds were divided equally between Klara and Franz.[10]
[10]CD 91
21 Eva had little contact with Franz from a short time prior to the sale of the matrimonial home. Klara moved out of the matrimonial home. Franz remained there until it was sold. Eva did not telephone or see Franz. She said that she expected him to ring her. She maintained a good relationship with Klara. It would appear that Eva decided to maintain a relationship with Klara, and less so with Franz because of the way she perceived Klara had been treated by Franz. She said that her relationship with Klara and Franz began to go that way from the mid-1990s.[11]
[11]Transcript 37
22 Eva said that she was unaware that Franz had passed away. She did not attend his funeral. She was asked why it was that Klara's brother attended the funeral, and whether she accepted that he attended the funeral then Klara must have known of Franz's death. She was unable to answer say whether Klara knew or not. It must be remembered that Klara was not required for cross examination.[12]
[12]Transcript 38
23 One of the defendants, George, swore an affidavit on 25 October 2012. He was a lifelong friend of Franz. He had known him for about 50 years. He doubted that Eva had much contact with Franz from some time in the 1990s. He said that he dropped in to see Franz about once a week to once a fortnight, and mostly on weekends. He said that on the occasions when he visited Franz he had not seen Eva at Franz's home.[13]
[13]Transcript 69
Findings
24 I accept Klara's evidence that she met Franz in 1947 in Germany when Eva was about two years of age. She developed a relationship akin to a domestic partnership with Franz which subsisted until Franz migrated to Australia in 1956. The domestic relationship resumed in 1960 when Klara and Eva migrated to Australia.
25 From 1960 until about the mid 1990s there is no evidence to suggest that the relationship between Klara and Franz was other than cordial, and very probably a relationship consistent with an uncomplicated family relationship. I accept that Eva treated Franz as her father, and that Franz responded in a like manner.
26 Despite a fracture in Eva’s relationship with Franz when she was in her late teens her relationship with Franz continued to be cordial. Following her marriage to Dierk, the cordial nature of their relationship persisted. Franz treated her children as his grandchildren. He babysat Eva’s children, and bestowed on them a significant sum of money when they were eighteen years of age for the purpose of each of them buying a car.
27 In the mid-1990s Eva was about 50 years of age. It was about that time that the relationship between Klara and Franz was souring quite seriously. That seems to be the undoubted evidence of Eva and George. Despite the relationship being in a downward spiral the property at Macclesfield was sold, and the proceeds were divided equally, but Klara and Franz purchased a property at Elsternwick. I infer that they did so from monies in their individual possession because when it was sold in 2005 the proceeds were divided equally.
28 I accept that there was serious discord in the relationship between Klara and Franz from the mid-1990s to 2005 when the property at Elsternwick was sold. Although, George, and to a lesser extent Ria Van Dyke,[14] appear to have a low opinion of Klara and that her behaviour towards Franz was deserving of condemnation, it is rather a secondary to the claim made by Eva that Franz owed her a responsibility and was in breach of his moral duty to make provision for her in his will. Neither makes any serious allegations of misconduct on the part of Eva except that George did not believe that Eva visited Franz because he did not see her at Franz’s home on the weekly or fortnightly occasions when he dropped into see him.
[14]The other executor of Franz’s estate
29 There is tone in George's affidavit that Eva is undeserving of provision out of Franz’s estate. It seems to me that the allegations he has made in his affidavits are more directed towards Klara, but the tone suggests that Eva ignored George following the final separation of Klara and Franz in 2005.
30 I am not blind to the fact that when husbands and wives separate and divorce, in circumstances where there has been serious discord accompanied by aggressive conduct and even violence, that children are exposed to very difficult circumstances of then having to behave passively in the company of warring parents. It seems to me that it is the situation in which Eva found herself.
31 I accept that Eva had little to do with Franz after 2005, and resolved to have a relationship with him in which she expected him to contact her rather than creating a relationship as a two way street. It was that decision which was inevitably going to see both Eva and Franz become intransigent and non communicative with each other. It seems to me that Franz was largely responsible for that situation, but Eva’s resolve to communicate with him on a limited basis essentially consigned their relationship to being non-existent.
The Issues
32 Ms Sparke, in well structured submissions, submitted that there were essentially three issues which, singly or collectively, were an answer to Eva’s claim.
33 Firstly, Eva is a stepchild to whom no responsibility is owed because she has not been deprived of the inheritance which is yet to come from Klara.
34 Secondly, Eva and Franz were estranged. If Franz owed a responsibility to Eva that there was no breach of the moral duty to make provision for her as a wise and just testator must because the platform on which that moral responsibility rests is obviated because Eva favoured her mother against Franz from the mid-1990s, and essentially abandoned any contact with Franz from 2005 to the date of his death some six years later.
35 Thirdly, Eva cannot demonstrate need given the financial position and resources of herself and her husband, Dierk.
Disposition
36 Ms Sparke referred me to a number of decisions relevant to the position of stepchildren. For example, she referred me to McKenzie v Topp[15]. The claimant’s natural parent married the deceased. The natural parent predeceased the deceased. The deceased inherited the whole of the natural parent’s estate. In summary, Nettle J held that it is open to the Court, in those circumstances, to take into account the estate brought in by the claimant’s natural parent as a factor to be considered when determining a claim against the deceased.[16]
[15][2004] VSC 90
[16]Ms Spark also referred me to James v Day [2004] VSC 290, Freeman v Jacques [2005] QSC 200, [2005] QCA 423, Keets v Marks [2005], Powell v Monteath [2006] Qd R 473 and Robertson v Koska [2010] VSC 134
37 Ms Sparke submitted that the facts of Eva’s case are clearly distinguishable because when Klara and Franz’s marriage breakdown they settled their property affairs. Therefore, no component of Franz's estate has been contributed to by Klara.
38 I am not persuaded that there is any merit in the submission. It is an invitation to treat a matrimonial breakdown between parents, as in some way abrogating the moral duty on the step parent to consider whether he/she owes the stepchild a responsibility and whether making no provision for the stepchild may amount to a breach of the stepparents moral duty.[17]
[17]Ms Spark provided me with a written outline of opening observations in which she referred to authorities such as Grey v Harrison [1997] 2 VR 359 of the right to freedom of testation which are submissions invited at this point invited me to consider
39 Ms Sparke referred me to a number of authorities in which observations have been made by Courts of the effect of estrangement on whether a responsibility is owed, and if it is owed, whether there is a moral duty to make provision.[18] Essentially, those authorities stand for the proposition that the estrangement might go to reduce the moral force of the claim or might defeat it.[19]
[18]McDougall v Rogers; Estate of James Rodgers [2006] NSWSC 484; Contencin v Tasmanian Perpetual Trustees [2010] TASSC 3; Vincent v Rae [2006] VSC 346, and Hogan v Clarke [2002] NSWSC 386
[19]Ms Stanisich also referred me to a number of authorities turning to the same proposition which I consider are necessary to refer to
40 Ms Sparke submitted that Eva was less interested in Franz as the marriage between Klara and Franz soured, and that she favoured Klara. Furthermore, she submitted that the evidence disclosed that after 2005 Eva effectively consigned her relationship with Franz to one of distance and disinterest, demonstrated by having no contact with him when she could have continued to do so, or at the least made some efforts to make contact with him.
41 The observation was made in McDougall that it is often impossible to determine whether the degree of separation between a parent and a child is solely the fault of one or the other where the separation has come about due to factors too strong for either to control or somewhere in between.[20] What is clear is that neither Eva nor Franz made any attempts at reconciling. At one point in her evidence Eva described sitting down and speaking to Franz. It was in the context of Klara and Franz fighting. Eva said that what she wanted was for both of them was to be happy. Franz said nothing to Eva in response to that conversation. She said he just listened.[21]
[20]paragraph 42
[21]Transcript 32
42 I accept the evidence of both Klara and Eva that Franz tended to drink excessively, and when he did he tended to be aggressive, sometimes violent and behaved erratically. These circumstances must have made it difficult for Eva to determine what relationship she could have with Franz particularly when he refused to speak to her when she made an attempt to do so. It seems to me that if it comes down to determining fault, then it was largely on the part of Franz, and to a lesser extent on the part of Eva in resigning herself to the fact that her relationship with Franz was over, and if not over it was not likely to be a productive one.
43 I am not persuaded that the estrangement between 2005 and 2011 when Franz died is such to disentitle Eva or entitle her to a legacy only.
44 Eva and Dierk are both retired. Their circumstances can be summarised as follows:
· They are the proprietors of 30 Cinerea Avenue, Ferntree Gully valued at $370,000-$405,000.[22] There is a line of credit is secured over the property. They have drawn down on the line of credit by $53,000.[23]
[22]Exhibit A
[23]Transcript 49-50
· They are the proprietors of a serviced apartment in the Metropole Hotel Apartment and Conference Centre at 44 Brunswick Street, Fitzroy. It was placed on the market for $190,000. The best offer received was $146,000 which is below the $150,000 which they paid for it. The apartment is encumbered by a borrowing of $91,412. It may only be worth $136,000.[24] They receive a rental of $9892.92 for the apartment which is consumed by repayment of the borrowing over it.
[24]CB 110
· They have superannuation in the Hanseatic Super Fund of $220,000. They have other assets in the fund described as RCL of $128,000 and Altitude of $10,000 which have been frozen as a consequence of the global financial crisis. Mr Claudio Orrico, financial adviser swore an affidavit on 21 February 2013 in which he referred to the super fund and the problems with two investments in that fund. He estimated that if they draw down $3446.67 per month they will extinguish the fund in ten years. If the RCL and Altitude remain frozen the fund will be extinguished in six years.
· They receive a centre link pension of $26,513.76.
· Their other assets comprise a Holden Astra car valued at $9000; a Mercedes car valued at $46,000; AMP shares valued at $3844 and Glaxo SmithKline PLC shares valued at ₤11,875.
45 Ms Sparke challenged the value of the apartment and the value of the Mercedes car. However, I am left with the evidence of Dierk relevant to the decrease in value of the apartment and the depreciation of the Mercedes car. I accept his evidence; however, I propose to test the question of need by assuming that the apartment and the Mercedes car are of greater value.
46 The net asset position of Eva and Dierk appears to me to be approximately:[25]
[25]I have rounded the figures down. The income, expenditure, assets and liabilities is set out in the affidavit Dierk’s affidavit sworn 7 March 2013 at CB 136-141
· 30 Cinerea Avenue - $352,000 which assumes the higher value less the line of credit.
· The apartment - $99,000 which assumes a value of $190,000 less the borrowing.
· A superannuation fund which will extend to 10 years if they draw down $3446.67 per month, and an annual pension of a $26,513.76.
· Shares of say $20,000.[26]
· Cars of say $55,000.
[26]My rough conversion of the shares in two an Australian dollar value
47 If Eva and Dierk liquidate their assets they will have a potential net estate of $526,000 plus the superannuation fund and the pension. This calculation is very rubbery. It does not take into account the lower end of estimates of the value of 30 Cinerea Avenue and the apartment; the costs associated with the sale of those properties; that part of the superannuation fund which is locked up, and that the cars are constantly depreciating.
48 In relation to income, Eva and Dierk have a reasonable income at present comprising about $1300 (rounded down) per week for the next 10 years when their superannuation will be extinguished leaving them with a pension of about $500 per week.
49 I do not consider the asset and income position of Eva and Dierk to be other than relatively modest for two people who are now in their late sixties. They, like all people of their age, will eventually need to move into more appropriate accommodation as they become mentally and physically less able to maintain their independence. That is likely to call upon their estate to provide the cost of nursing home accommodation and something for contingencies. Whilst there is no evidence of these matters before me it is within the range of my general understanding for me to conclude that they are likely to struggle to make ends meet and to maintain their lifestyle at a reasonable.
50 I will now deal with each of the matters referred to in section 90 (4) (e)-(p):
· Paragraph (e) - Eva was the stepdaughter of Franz. They had a long and cordial relationship as stepfather and stepdaughter until the mid-1990s, and to a lesser extent from that time until 2005. Otherwise, I refer to my observations of their relationship referred to above.
· Paragraph (f) - I find that the Franz owed a responsibility to Eva. Although they were stepfather and stepdaughter their relationship was very long and rather more like father/daughter, and it appears to me that it is the way they behaved towards one another until the souring of the matrimonial relationship between Klara and Franz came to an ultimate head in 2005 when they separated and divorced.
· Paragraph (g) - the estate is relatively modest. It is about $400,000 less about $90,000 in legal costs, therefore, just over $300,000.[27]
[27]Ms Sparke informed me that the defendant's costs are about $45,000. Ms Stanisich informed me that I should assume the plaintiff's costs will be much the same
· Paragraph (h) - I have dealt with the financial resources and needs of Eva above. I find that she is in need.
· Paragraph (i) - Eva has had a number of surgical procedures and is at an age where she is well and truly retired. She appears to be in reasonable health, but no longer has an earning capacity given her age and the fact that she is retired.
· Paragraph (j) - Eva is 68 years of age. Otherwise I repeat the matters referred to in the last preceding paragraph.
· Paragraph (k) - Eva did not contribute to the estate of Franz in a material way, but did add to his welfare in the relationship which she had with him as his stepdaughter.
· Paragraph (l) - there is no evidence that Franz advanced Eva any monies of significance during his lifetime save for the monies that he gave her children.
· Paragraph (m) - Eva was not being maintained by Franz.
· Paragraph (n) - the only person who could be said to have a liability to maintain Eva is Dierk.
· Paragraph (o) - Eva, it appears to me, is a person of reasonable character and has conducted herself reasonably well given the difficult relationship between Klara and Franz and the circumstances which led to the breakdown of their marriage.
· Paragraph (p) - the only other matter which is relevant is the degree of likelihood that Eva will inherit the whole of Klara’s estate. Klara has a unit at 7/5 Francis Crescent, Ferntree Gully valued at between $340,000-$360,000.[28]
[28]CB 145
51 Ms Sparke submitted that Eva will inherit Klara's estate. There is some likelihood that she will, but how much she will inherit is another matter. Klara is 89 years of age. It would appear that she is able to live independently. There are inevitable contingencies that she will face over the balance of her life, for example, a nursing home bond and other capital expenses associated with the care that she may need if and when she becomes so mentally and physically frail that she requires that level of care. I think it is unsound for me to assume that the current value of her unit less sale costs will fall into the hands of Eva, and of course it is not known whether Klara has in mind to leave some or all of her estate to Eva, and/or to other beneficiaries. I think the only conclusion I am prepared to reach is that Klara's estate may be a resource upon which Eva can rely on the future, and beyond that I think is to engage in a reasonable speculation.
52 Mr Stanisich submitted that the length of the relationship was very long and cordial. It was largely brought to an end by the conduct of Franz. To the extent that there was estrangement it was caused by Franz. Lastly, as the only father who Eva new he owed her a responsibility to make provision for her which he had failed to do in breach of his moral duty as a wise and just testator. She submitted that the provision which I should make for Eva should be substantial.
53 I am mindful that when determining what a wise and just testator should do I am required to consider that obligation on Franz's part at the time of his death. I have considered his responsibility on that basis. I find that Franz should have considered each of the matters which I have taken into account when considering whether to make provision for Eva. I find that he did not.
54 There is no evidence to point to any competing moral claim by the beneficiaries.
55 The approach I must take is to consider what provision should be made by considering the contingencies of life which Eva will face and to provide her with a nest egg to guard against unforeseen events.[29]
[29]McCann v Ward [2012] VSC 63
56 Synthesising all of the foregoing,[30] I consider that Franz should have made provision for Eva, and I consider that a wise and just testator would have made provision in the sum of $200,000. I consider that to be adequate provision given the financial circumstances Eva which I consider speaks of the need.[31]
[30]The approach taken in Blair v Blair (2004) 10 VR 69
[31]The approach in quantifying adequate provision was also the subject of observation by, for example, Unger v Sanchez [2009] VSC 541 in which Kaye J observed that a claimant does not need to be indigent or in difficult financial circumstances to qualify for provision: paragraph 99
Conclusion
57 I propose to have Counsel draft the orders by amending Franz’s Will to reflect the conclusions I have reached, and then hear Counsel on the question of costs.
---
0
12
0