Mills v State Trustees Limited
[2012] VSC 614
•18 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2011 00203
IN THE MATTER of the Will and Estate of JEAN ELIZABETH MILLS, deceased
- and -
IN THE MATTER of Part IV of the Administration and Probate Act 1958
B E T W E E N :
| JOHN IAN MILLS and others (according to the schedule attached) | Plaintiffs |
| - and - | |
| STATE TRUSTEES LIMITED (ACN 064 593 148) (as Executor of the Estate of JEAN ELIZABETH MILLS, deceased) | Defendant |
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JUDGE: | RANDALL AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2011 | |
DATE OF JUDGMENT: | 18 December 2012 | |
CASE MAY BE CITED AS: | Mills v State Trustees Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 614 | |
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TESTATOR’S FAMILY MAINTENANCE – Summary judgment application by Executor – Claim by nephews and niece of deceased – Estate comprised of various assets including the grandparents’ home - Whether or not deceased had a responsibility to make provision for plaintiffs – Plaintiffs’ application has more than a fanciful prospect of success – Administration and Probate Act 1958 s 91, Civil Procedure Act 2011 s 67
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R.C. Wells | Madgwicks, Lawyers |
| For the Defendant | Mr R.B. Phillips | State Trustees Limited Legal Branch |
HIS HONOUR:
Background
The late Jean Elizabeth Mills (‘Jean’) died on 8 March 2010. By her last will, Jean left an estate valued at approximately $1,860,000. The residuary estate under her will passed to Ambulance Service Melbourne.
Jean was the youngest one of three children and was born on 10 June 1934. Her eldest brother William Alfred Mills (‘William’) was born on 2 October 1918 and died on 27 March 1991. The other brother, Jack Leslie Mills (‘Jack’) was born on 13 March 1917 and died on 2 November 2003.
The parents of Jean, William and Jack moved to Australia from Ireland in around 1911. At some time after 6 January 1916, Jean’s parents moved from Sydney to Melbourne and purchased a property at 146 Park Drive, Parkville (“the Parkville property”). The Parkville property was their family home.
William lived at the Parkville property until his marriage in 1945. Prior to that he had only left the family home to go to war. Jack also lived at the family home until he left to marry.
Jean remained a spinster and continued to reside at the Parkville property supporting her parents until the time of their deaths. Under the will of Jean’s mother, the Parkville property was left to Jean and the residuary estate was left equally between Jean, Jack and William.
The four claimants for provision under Part IV of the Administration and Probate Act 1958 (“the Act”) are the nephews and niece of Jean. Janice Thelma Hampson (‘Janice’) and Geoffrey William Mills (‘Geoffrey’) are the children of William. John Ian Mills (‘John’) and Colin Bruce Mills (‘Collin’) are the children of Jack.
The defendant to the application for family provision is State Trustees Limited which is sued as the Executor of the deceased estate of Jean. State Trustees Limited filed a summons on 30 June 2011 seeking that pursuant to r 23.01(1)(a) of Chapter 1 of the Rules of the Supreme Court, the proceeding be dismissed as the originating motion does not disclose a cause of action. The alternative relief is that pursuant to r 23.03 there be summary judgment for the defendant. State Trustees Limited, for the purposes of this application, accept what the plaintiffs have set out in their affidavits in support of the originating motion. State Trustees Limited submits that:
…on the plaintiffs’ own evidence, their case is bound to fail as there is nothing disclosed that shows that each of the plaintiffs were persons to whom the deceased owed a responsibility to make adequate provision for their proper maintenance and support.[1]
[1]Paragraph 10 of the defendant’s outline of submissions dated 17 October 2012.
The facts
The affidavits in support of the originating motion are as follows:
(a)John Ian Mills, the first plaintiff, sworn 10 May 2011;
(b)Colin Bruce Mills, the second plaintiff, sworn 12 May 2011;
(c)Janice Thelma Hampson, the third plaintiff, sworn 11 May 2011;
(d)Geoffrey William Mills, the fourth plaintiff, sworn 11 May 2011.
From those affidavits facts in support of the application may be distilled. For the purpose of this application those facts are not in issue.
The facts are as follows:
(a)Jean was one of three children of William and Jane Mills.
(b)Jean’s parents purchased the Parkville property at 146 Park Drive, Parkville (“the Parkville property”). Jean lived there with her parents until the 1990s when she went to live with her partner, Randall Fox (‘Randall’). William lived at the Parkville property until his marriage in 1945. Prior to that he had only left the Parkville property to go to war.
(c)Likewise, Jack resided at the Parkville property until leaving home to marry in 1946. His only prior absence from the Parkville property was while he was away at war as well.
(d)Jean’s mother (the plaintiffs’ grandmother) died on 2 August 1979.
(e)The plaintiffs set out a history of many family gatherings at the Parkville property, although such occasions declined once their grandparents had died.
(f)After her marriage, Janice moved to Geelong and her contact with her grandmother and Jean was not so regular. Thereafter Janice continued to have regular contact with Jean and her partner and kept in touch with them on the occasional family gathering.
(g)Colin undertook an apprenticeship in carpentry and joinery at the Melbourne City Council. The proximity of the Parkville property to his work site enabled him to visit his grandmother regularly. He moved to Mordialloc in or around 1968. From around 1982 to 1993 he was a self-employed maintenance worker. As he worked for himself, he was able to see his grandmother and undertake odd jobs around the Parkville property during the week. Prior to his grandmother dying, in or around 1972, Jean asked whether he would be involved in moving the outside toilet inside. He attended to the same.
(h)He also undertook various tasks at the Parkville property including:
(i)re‑roofing the house;
(ii)replacing fascia boards and guttering where he was also assisted by his cousin Geoffrey;
(iii)installing a new hot water service;
(iv)installing gates at the rear of the property;
(v)completely renovating the kitchen where he was assisted by his brother John;
(vi)organising for the sewer to be cleaned on two or three occasions;
(vii)fitting up new security gates;
(viii)making an installing windows/grilles for security (which he paid for);
(ix)garden maintenance as regularly required;
(i)Colin deposed:
I did this work because Grandma had throughout her life mentioned struggles that she and Grandad had been through to have the property. I felt that we should keep the Parkville property in good nick. I continued to do work after Grandma died because Jean asked me to. I believe that Jean was not well off. I thought she was short of money and tried to assist her in any way I could. Jean always had me putting on her Tattslotto for her. She always said it would be nice to win the big one as she desperately needed the money.[2]
[2]Affidavit of Colin Bruce Mills sworn 12 May 2011, paragraph 69.
(j)Jean left an estate of approximately $1,860,000. This estate comprised the value of the home at 50 Madeline Street, Glen Iris (‘the Glen Iris property’) as well as some other investments;
(k)One of the investments left by Jean was an investment with ING which at the date of her death was $788,772.72. Part of that ING investment represented the proceeds of the sale of the Parkville property which had been sold in or around October 2008 for the sum of $685,000.00;
(l)Geoffrey undertook an apprenticeship as a turner and fitter and also completed a marine engineering course at RMIT. Between 1973 to 1980 he was in the merchant marine. His time away from sea enabled him to assist in maintenance, repair and improvement work and upkeep of the Parkville property with his cousin Colin;
(m)John had on occasion helped his father and brother to carry out repairs to the Parkville property. Although no time frame is set out, it would seem that most of the tasks referred to by John were undertaken while his grandmother was still alive;
(n)Geoffrey thought that in or around 1972 (while his grandmother was still alive) or on a later occasion Jean said, “We’ve got to keep improving the place. It’s got to be kept up. It’s a family asset”;[3]
[3]Affidavit of Geoffrey William Mills sworn on 11 May 2011, paragraph 44.
(o)In or about 1991, Geoffrey returned a key to the Parkville property to Jean in the post. At that stage he no longer attended to maintenance at the Parkville property;
(p)Each of the plaintiffs contended that they believed that the Parkville property would one day be inherited by the plaintiffs as it would remain in the family. Save as referred to in (i) and (n) hereof, there was nothing said or done by Aunt Jean that may have encouraged the belief;
(q)Jean vacated the Parkville property and resided at the Glen Iris property with Randall. She continued to reside at the Glen Iris property after the death of Randall and until her death;
(r)One of Colin’s children, Melanie, lived at the Parkville property from 2002 until 2008 when she was sent a notice to vacate by Jean’s solicitor. Melanie had been paying around $100 a week for rent which was below market rental rate. Colin Mills deposed that the rental at below market rate supported his view that the Parkville property was considered a family asset. After a second notice to vacate Colin negotiated with Jean and secured a six month period to enable Melanie to find a house;
(s)Colin had found out that the Parkville property was being sold and in a conversation with Jean, she said, “I can’t keep it because of paying all of the rates and insurance on it.” “I always believed that Jean was short of money”. This conversation is taken to have occurred prior to settlement of the sale as Colin subsequently deposed:
After I thought about it, I wasn’t too concerned at this as I thought she would invest the proceeds and they would be passed down to the family.[4]
(t)Notwithstanding what is set out by Colin, each of the other plaintiffs set out that they had found out that the Parkville property had been sold after the event;
(u)Jean died approximately two years after the sale of the Parkville property.
[4]Affidavit of Colin Bruce Mills, paragraph 98.
In addition to what is set out in the affidavits, counsel for the plaintiffs also argued that a moral obligation arose because Jean had inherited all of the family’s estate to the exclusion of her brothers Jack and William.
Summary dismissal/judgment principles
By s 76 of the Civil Procedure Act, Part 4.4 of Chapter 4 applies to this proceeding as it was commenced by originating motion filed on 20 January 2011. Part 4.4 permits the application for summary judgment “on the ground that a plaintiff’s claim or part of that claim has no real prospect of success”.[5] The summary judgment provisions under r 23.01 may be invoked in an application of this type despite there being no pleadings.[6]
[5]Section 62.
[6]Harris v Bennett& Anor(No 1) (2002) 8 VR 411 at [51]-[52].
The test on an application for summary judgment has been conveniently set out by the Honourable Justice Bell in APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd.[7] His Honour referred to the judgments of J Forrest J and Dixon J[8] namely, that:
The defendant will have no real prospect of success if those prospects are no more than fanciful.
[7][2011] VSC 555 at [4].
[8]Respectively in Matthews v SPI Electricity (Ruling No 2) [2011] VSC 168 and Ottedin Investments v Portbury Developments [2011] VSC 222.
In any event, Bell J went on to say, in dealing with construction, as follows:
In my view, the defence in this case can only be properly evaluated upon a full consideration of the provisions of the deed at trial. While the plaintiff’s case seems strong on the law and indeed on the merits, there is material risk that the Court would do a serious injustice to the defendant by giving summary judgment against it.[9]
[9][2011] VSC 555 at [11].
In am further cognisant of what Kirby P (as he then was) said in Wickstead v Browne:
Common experience teaches that it is usually more efficient and just to consider the viability of the cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle. That is why leave is usually required for an appeal from interlocutory orders. Appellant courts, including this Court, will usually require evidence to be adduced and the trial concluded before considering the application of the law to that evidence. Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold. [10]
[10]Wickstead & Ors v Browne (1992) 30 NSWLR 1 at [2].
This is a matter where a novel proposition of law was propounded. Kirby P’s comments are consistent with the caution set out by Bell J.
Part IV principles
In Webb v Ryan,[11] Whelan J said:
An important feature of Pt IV is that it is directed towards provisions for “proper maintenance and support”. The Part is not concerned with an obligation to reward a person or with the distribution of estates according to individual notions of fairness or equity.
Since the 1997 amendments, the court is required to undertake a three stage process. First, it must decide whether or not the applicant falls within that class of person for whom the deceased had a responsibility to make proper provision for maintenance and support. If so, the court must decide whether the applicant has been left without adequate provision for his or her proper maintenance and support. Finally, the court must determine what provision out of the estate would have been made by a wise and just testator. There is significant overlap in the considerations referable to each stage of the process.
The 1997 amendments are part of a continuum, rather than a complete break with the past. One important feature of the historic context is the importance which must be attached to the freedom of testation. The court will only intervene when that freedom has been abused by a failure by the deceased to fulfil his or her responsibility to an applicant.
Because of the seriousness of the allegation that a testator has abused his or her freedom of testation, the principles concerning the qualities of the proofs required, as set out in Briginshaw v Briginshaw, need to be borne in mind.[12]
[11] Webb & Ors v Ryan & Anor [2012] VSC 377.
[12]Webb v Ryan at [18]-[21] (citations omitted).
Section 91(4) of the Act sets out a number of matters to which regard must be had.
Section 91(4) factors
Accepting what has been set out in the affidavits filed by the plaintiffs, the material demonstrates a willingness to assist the plaintiffs’ grandmother and, to a lesser extent, the deceased. I make this observation as most of the tasks refer to as having been attended to by Colin were identified as having been carried out whilst his grandmother was alive and resided at the Parkville property.
From the material, it would appear that Collin was the person who took the lead in attending to tasks and each of Geoffrey and John assisted Colin from time to time. I also distil from the material that contact with Jean was not as significant as contact with the plaintiffs’ grandmother. I distil that not only from the timeline but also reference to conversations. Colin relied upon a request by Jean in 1972. Geoffrey referred to a conversation in or around 1972 as well. At that time, the plaintiffs’ grandmother was still alive.
Section 91(4) requires consideration of the contribution by the plaintiffs to the estate. I am satisfied that there has been contribution by the plaintiffs in various degrees. However, such contribution seems to have been confined to a period very distant from the date of death and, in the main, prior to the transfer to the deceased. In those circumstances and, particularly in the absence of any evidence that such contributions made any material difference to the estate, the contributions seem to be insignificant.
Further, none of the matters deposed to, demonstrate a relationship between the plaintiffs and the deceased which was other than expected within the normal extended family. The relationship or relationships deposed to, in isolation, could not be considered to give rise to a moral responsibility to make provision. Certainly, the plaintiffs do not demonstrate any obligations or responsibilities of the deceased to the plaintiffs within the meaning of s 91(4)(f). However, the plaintiffs additionally rely upon an acknowledgement of obligation or responsibility within the meaning of s 91(4)(f) and an analogy with the McKenzie v Toop[13] principle.
[13][2004] VSC 90.
Acknowledgment
Apart from the statement attributed to Jean by Geoffrey Mills in or around 1972, the belief by the deponents that the Parkville property was to pass to them is unsupported by any representation, statement or conduct on the part of the deceased. The statement attributable to Jean in 1972 being: “We’ve got to keep improving the place. It’s got to be kept up. It’s a family asset” was made a number of years prior to the death of the plaintiffs’ grandmother. In those circumstances it could not be said to be a statement made on her own behalf, nor could it be said to be offered as an inducement to carry out works on her behalf. Given that a further seven years elapsed before the plaintiffs’ grandmother died, it cannot be contended that the statement constituted an acknowledgement of responsibility to make provision out of the deceased’s will.
McKenzie v Topp
In McKenzie v Topp, counsel for the plaintiff had argued that:
… Where a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make adequate testamentary provision for those children. More specifically, it was said, because it is often the case that a husband cannot know with certainty the extent of the support that his widow will require, and in those circumstances it may be that anything less than the entire estate would be inadequate provision for the widow’s proper maintenance and support, the children of the first marriage must forego the provision which they might otherwise have received in order that their stepmother receive adequate provision. But if then later when the stepmother dies there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, it is her responsibility to make it good.[14]
[14]At [56].
At [57] the Nettle J (as his Honour then was) observed that the proposition was novel but then at [58] said:
Be that as it may, however, it appears to me that the proposition should be accepted, up to a point. For just as community attitudes are the cornerstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of the second marriage should rank in priority ahead of the claims of the children of the first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair value. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.
The plaintiffs also relied upon James v Day.[15] In that case, the plaintiff’s father died in 1992, their stepmother survived and took the whole of her husband’s estate under his Will and the jointly owned matrimonial home by survivorship. The stepmother made provision to her nephew and niece but made no provision for the stepchildren.
[15][2004] VSC 290.
At [35], Cummins J said:
… It matters not that the plaintiffs did not seek to make a claim upon his death because they did not wish to disturb his widow’s last years or whether they did not because there was little in his estate. The question of the deceased’s responsibility to make provision for her stepchildren necessarily in this case bears an historical extract.
The plaintiffs’ counsel also relied upon subsequent “stepchildren” cases.
The plaintiffs’ counsel submitted that there was a direct analogy in this application to the McKenzie v Topp principle:
… The deceased parents (the plaintiffs’ grandparents), understandably and in accordance with “societal norms”, no doubt felt obligated to give their real estate to their spinster daughter (this deceased), even though she was only one of their three children, because she had remained living at the home with her parents for the whole of their joint lives and their real property had in fact become her home. But in doing so they were not able to make any provision for their other children (their two sons). Upon her demise, her brothers (and now because of their demise, their issue, being the plaintiffs), ought to be entitled to receive all or at least part of the entitlement that they did not receive from their parents’ estate, because of the higher claim at that stage of their sister, who had no home or her own then, but was accommodated by her parents.
The evidence contained in the plaintiffs’ affidavits, to the effect that there was a family expectation that the Parkville property was to be kept in the family, is consistent with the deceased’s brothers (the plaintiffs’ parents) assuming that the deceased would recognise that she had a moral obligation to pass by her will the Parkville property (or its proceeds of sale) back to themselves or their families upon her demise, in recognition of the larger benefit she had received from her parents’ estate at the expense of her brothers.[16]
[16]Plaintiffs’ submissions dated 18 October 2011, paragraphs 5-6.
The defendant submitted that the principle as discussed in McKenzie v Toop has been ameliorated in Victoria to a large extent by the comments of Hanson J in Petersen v Micevski[17] and of Vickery J in Robertson v Koska.[18] In Robertson v Koska, Vickery J set out the following:
McKenzie was cited in two Victorian cases which followed: James v Dey and Keets v Marks. However, in my opinion, the approach taken in both cases was not faithful to the principle as it was stated by Nettle J in McKenzie. In James, the approach taken by the trial judge appeared to be shaped by treating the natural parent’s contribution as if it was the only factor justifying provision to the stepchild, rather than simply comprising one of the relevant factors. In Keets, the trial judge appears to have also approached McKenzie as if it was something of a formula to justify the return of the value of the natural parent’s contributions to her son, the plaintiff. [19]
[17][2007] VSC 280.
[18][2010] VSC 134.
[19]At [97].
Vickery J continued:
In my opinion, the approach taken at a later Victorian case, Peterson & Anor v Micevski … is to be preferred. In Peterson, Hanson J considered the position where a father of four adopted daughters made an inter vivos gift of the proceeds of sale of his house to one of them, who used the money to buy land and build a home in which they then both lived together until the father died. The daughter then died shortly afterwards, leaving the property to only one of her sisters. The other two sisters claimed against her estate. In dismissing the claim, Hanson J issued the following caution, after observing the distinguishing features of McKenzie, James and Keets from the case then before his Honour:
… it is to be noted that even if the limited principle stated by Nettle J applied, the result is that the amount left by the father to the widow “may” be relevant to the question of whether the stepmother was responsible to provide for the children. As his Honour made clear, it was a factor to be considered along with facts pertaining to the relationship between the plaintiff and the testatrix and whether the plaintiff had a need for provision. In the particular circumstances Nettle J concluded that the plaintiff had established both that he had given the testatrix assistance worthy of recognition and that he had a need for maintenance and support.
…
A matter to be noted about counsel’s recast formulation is that the consequence of a responsibility to make provision follows automatically on the establishment of the factual premises. This was not the approach of Nettle J, nor could it be, bearing in mind the factual nature of the enquiry under s 91. [20]
[20]At [98].
In Peterson, Hanson J said:
In the particular circumstances of McKenzie, which are very different from the present case, Nettle J found a duty in the step-parent to make provision in favour of her stepchild. The decision, of course, was one reached on, and controlled by, the facts of the case. The reasoning by which Nettle J found as he did does not, I consider, state a “principle” in the sense of a gloss upon s 91 and to be followed with such adaption as necessary to accommodate it to different facts and circumstances in cases under Part IV. That is not to deny usefulness in consideration of the reasoning but to be mindful that these are fact cases. Being so mindful, I note that in McKenzie Nettle J said, in language appropriate to the facts of that case…
…
It is to be noted that in the present case, unlike McKenzie, James and Keets, the property was given to a child and by gift inter vivos, rather than by will to a spouse who was a step-parent of the plaintiff child. Further the consideration of the children of the first marriage (standing aside) is not present, as the gift inter vivos was not amenable to being affected under Part IV and there is nothing in the facts that indicates a basis otherwise for setting aside the transaction. Finally, it is to be noted that even if the limited principle stated by Nettle J applied, the result is that the amount left by the father to the widow “may” be relevant to the question of whether the stepmother was responsible to provide for the children. As his Honour made clear, it was a factor to be considered along with the facts pertaining to the relationship between the plaintiff and the testatrix and whether the plaintiff had a need for provision. In the particular circumstances Nettle J concluded that the plaintiff had established both that he had given the testatrix assistance worth of recognition and that he had a need for maintenance and support.[21]
[21]At [134]-[135].
Hanson J continued:
Counsel for the plaintiffs submitted that the principle in McKenzie may be recast and, as recast, applied in the present case. It was to be recast as follows: Where a substantial part of a deceased estate has been derived from a person who in the ordinary course of events would have made provision there from for family members who, but for some intervening event, would have been persons for whom the person being the source of funds would have a responsibility to provide, then the recipient of those funds will be found to have an obligation or responsibility to similarly provide for those family members. Counsel submitted that the passing by Jack to Amanda of all his property was of the same character as the provision by will of a remarried man for his second wife. There was thus provided a sound basis on which to hold that Amanda’s receipt of Jack’s property carried a moral obligation to provide for those for whom Jack would have had responsibility to provide.
A matter to be noted about counsel’s recast formulation is that the consequence of a responsibility to make provision follows automatically on the establishment of the factual premises. That was not the approach of Nettle J, nor could it be, bearing in mind the factual nature of the enquiry under s 91.
It is further to be noted that, consistently with this automatic consequence approach, counsel for the plaintiffs did not base their case on the nature and extent of their relationship with Amanda being one that gave rise to a responsibility to make provision for them out of her estate. Rather, as counsel for the defendant pointed out, the case was put on the different and narrower basis set out above. That did not base the obligation of duty to make provision on their relationship as sisters. In my view the family relationship cannot be ignored for it provides the circumstances in which the case arises and bears on the issue of responsibility. Indeed it is one of the matters which s 91(4) requires to be considered.[22]
[22]At [136]-[138].
After turning to consideration of what s 91 requires, Hanson J said:
Whether Amanda did have such responsibility is to be determined on a consideration of all of the relevant facts and circumstances. Those facts and circumstances include, but are not limited to, the fact that her father provided the funds for the acquisition of the Heritage Drive property and the building of the house thereon. Those funds were sourced from, but were not all of, the proceeds of sale of the family home at Gladstone Park. It would seem that the balance of funds received on the sale of property was spent by Jack on living and other expenses. If regard was had to no other matter it might be considered that Amanda, as a wise and just testatrix with no child or other dependent, ought have left the property to her three sisters as in effect representing the transfer to them of the benefit of the family home and which their father would likely have done by his will if the property had been retained in his name. However, that consideration is but part of the relevant facts and circumstances. Moreover, that consideration has a fundamental premises in it as to the likelihood of what Jack would have done on his death. In my view, if it is to be assumed that the four daughters were alive at his death, the greater likelihood is that he would have left his estate in the greater if not total part to Amanda in view of her need for protection having regard to her inability to provide for and care for herself. Nevertheless, not excluding that consideration as a factor I now refer to what seems to me to be the relevant facts and circumstances. [23]
[23]At [145].
The reformulation in the present case involves recasting not only to apply to the siblings of the deceased but is to be taken a step further. That is, as Jean’s brothers are also now deceased, their entitlement as persons who “stood aside” follows down the chain to their children, that is, her niece and nephews.
Further, in assessing whether or not the deceased owed an obligation or responsibility to the plaintiffs, based upon the recast formulation, it necessarily involves a determination of what the deceased’s mother might have done if she had turned her mind to her responsibilities to all three children. I have no doubt that the deceased continuing to reside with her parents and, in particular her mother, without being wed, whereas the two boys had made lives of their own, would have been a dominant factor but not necessarily the only factor. There is a dearth material which bears on that issue.
It seems to me that the argument, particularly in isolation, is weak. However, should I conclude that it has no prospect of success at trial? I have reluctantly concluded that the argument is not so weak that it is bound to fail. In reaching that conclusion, I have had regard to the composition of the plaintiffs’ argument as a whole. It is not reliant upon the recast of the Nettle J formulation in isolation. The recast formulation is put forward in conjunction with the contentions that each of:
(i)the family relationships;
(ii)contributions to the estate or to the welfare of the deceased by carrying out various tasks at the Parkville property; and
(iii)the acknowledgement by each of the plaintiff’s mother and the deceased that the Parkville property was a family asset
were sufficient to demonstrate that the deceased had a responsibility to make provision for each of the plaintiffs. The reformulation, is in effect, the icing.
The plaintiffs do not set out any dire financial need. Each of them discloses real estate assets. The mother of each of Janice and Geoffrey is also still alive. It may well be that each of those plaintiffs will receive provision from her estate at some time in the future. Again, what has been set out demonstrates that the plaintiffs’ claim is somewhat weak.
At this juncture I have not brought into account consideration of the circumstance that the deceased was not under any obligation or responsibility to make provision for any person other than the plaintiffs.
I have already commented that each of the factors in isolation was hardly sufficient to agitate the determination pursuant to s 91(4). However, the combination of each of the factors in circumstances where the plaintiffs’ parents had “stood aside” might convince the trial judge that some provision ought to be made. I cannot dismiss the plaintiffs’ prospect of success as being merely fanciful. In those circumstances, I do not perceive my role is to usurp the trial judge’s determination of the facts of this proceeding, nor make rulings that a particular principle (the reformulation) can or cannot be applicable to the circumstances. That is the role of the trial judge.
In those circumstances, I dismiss the application. This application by the defendant is, however, appropriate to be made and in those circumstances the usual order as to costs will apply.
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