Morris v Smoel
[2014] VSC 32
•14 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 6994 of 2010
IN THE MATTER of Pt IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the Estate of MAXWELL VERNON MORRIS, deceased
| PETER MORRIS and AMY SUMMER MORRIS (by her next friend MARGARET BONNAR) | Plaintiffs |
| v | |
| KERRY LINDA SMOEL and SUSAN CAROLYN WOOSTER (who are sued as the Executrices of the Will of MAXWELL VERNON MORRIS, deceased) | Defendants |
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JUDGE: | McMillan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2013, 29 April 2013, 11 November 2013 | |
DATE OF JUDGMENT: | 14 February 2014 | |
CASE MAY BE CITED AS: | Peter Morris v Smoel | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 32 | |
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TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by widow and three adult children — Widow effectively left a life interest in the estate with the residue left to the adult daughters of the deceased on the death of the widow — Adult son of the deceased left a small legacy — Granddaughter not a beneficiary under the will — Claim by the adult son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Competing claims against the estate of the deceased — Son estranged from father — Son’s claim dismissed — Application by granddaughter of the deceased — Deceased had never met granddaughter — Granddaughter’s application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Loewenstein | Alliance Legal |
| For the Defendant | Mr P Crofts | Aitken Partners |
| For Patricia Molly Morris | Mr S Pitt | Piper Alderman |
HER HONOUR:
Introduction
The first plaintiff (‘Mr Morris’) is the adult son of Maxwell Vernon Morris (‘the deceased’). The second plaintiff is the nine year old daughter of the first plaintiff, and a granddaughter of the deceased. Pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’), the plaintiffs claim that the deceased had a responsibility to make provision for them under his will.
The deceased died on 27 February 2010, leaving a will dated 8 April 2009 (‘the will’). Probate of the deceased’s will was granted to the defendants on 15 September 2010. At the date of his death, the deceased was survived by:
(a)his second wife, Mrs Patricia Molly Morris (‘Mrs Morris’), who is the plaintiff in a separate proceeding seeking further provision from the estate (‘Mrs Morris Part IV claim’);
(b)his three adult children of his first marriage:
(i)Mr Morris; and
(ii)Mrs Susan Linda Smoel and Mrs Susan Carolyn Wooster, his adult daughters and the defendants in this proceeding; and
(c)his grandchildren, including the second plaintiff.
Mrs Morris subsequently died on 24 September 2013. By consent orders her son Nathan Ashman (one of her executors appointed by her will) now represents the estate of Mrs Morris.
The trial of this proceeding was heard together with Mrs Morris’ Part IV claim, and the evidence and submissions in both trials took place on 23 April 2013 and 29 April 2013, with further hearing on 11 November 2013. My reasons for judgment in Mrs Morris’ Part IV claim are set out in Patricia Morris v Smoel.[1]
[1][2014] VSC 31 (14 February 2014) (McMillan J).
The Value of the Deceased’s Estate
Due to ongoing litigation instigated primarily by Mrs Morris, the value of the deceased’s estate has diminished considerably since the death of the deceased. A more complete explanation of this is contained in my reasons for judgment in Patricia Morris v Smoel.[2] At the date of his death, the estate was estimated to be valued at $1 802 182.80. Although more precise figures could not be provided, the trial was conducted on the basis that the value had been reduced to an amount that was greater than $200 000 but less than $300 000. Finally, following the delivery of judgment in proceedings relating to the Morris Family Superannuation Fund on 1 November 2013 (‘the superannuation proceeding’), an affidavit sworn 18 November 2013 was filed by the second defendant estimating the net assets at $194 346.55.
[2]Ibid [4]–[12], [16].
The Deceased’s Will
In his will, the deceased left Mr Morris a legacy of $10 000, and left nothing to the second plaintiff. In cl 13(b), the deceased explained:
I have not made greater provision in this my Will for my son PETER MORRIS for the following reasons:
(i)He has not for some time displayed the proper and expected behaviour of a child towards his father; and
(ii)I have provided him with adequate financial support throughout his lifetime, including loans that I made to him which have not been repaid.
In October 2013, the defendants, as the executors of the estate of the deceased, paid the legacy of $10 000 to Mr Morris in accordance with the deceased’s will.
The deceased left the residuary of the estate to the defendants, who were also his trustees and executors, and provided that the defendants were to be appointed as trustees of the Morris Family Trust and Morris Family Superannuation Fund. In cl 13(c), the deceased further provided that the defendants
have been extremely supportive of me during times of past difficulty.
In those circumstances, I consider that greater provision for my said daughter should be made as opposed to any other children of mine or my wife.
The provisions in relation to Mrs Morris are set out in my reasons in Patricia Morris v Smoel,[3] and leave Mrs Morris life interests in the matrimonial home, the beach house, a car, with the expenses associated with maintaining those gifts to be paid out of the estate and the deceased’s trustees to provide her with a reasonable living allowance. Clause 13(a) of the deceased’s will then provided:
Save for clause 3 thereof, I have made no provision in this my Will for my wife the said PATRICIA MOLLY MORRIS. The reasons that I have not made greater provision for PATRICIA MOLLY MORRIS is that I believe I have made adequate provision for her through directing that my said daughters in their capacity as Directors of the Trustee of the Morris Family Trust pay to my wife a reasonable living allowance from the Morris Family Trust and my superannuation, in addition to the pension which my wife is paid from the Morris Family Superannuation Fund to which I contributed a large amount of the balance.
[3]Ibid [13].
The Evidence at the Trial
In support of their claims, the plaintiffs relied on the following affidavits:
(a)four affidavits sworn by the first plaintiff;
(b)an affidavit by the first plaintiff’s partner and the mother of the second defendant, Louise Stricke; and
(c)an affidavit by the litigation guardian of the second plaintiff, Margaret Bonnar.
In defence of the plaintiffs’ claims, the defendants filed four affidavits:
(a)an affidavit of the first defendant sworn 9 August 2011;
(b)an affidavit of the second defendant sworn 7 September 2011;
(c)an affidavit of the second defendant sworn 22 April 2013 filed in Mrs Morris’s Part IV claim heard concurrently with this proceeding; and
(d)an affidavit of the second defendant sworn 18 November 2013.
Mrs Morris filed affidavits in her Part IV claim and some of the evidence in her affidavits filed in that proceeding was relevant to this proceeding. At the trial, only Mr Morris and Mrs Morris were cross-examined.
The Evidence of Mr Morris
Mr Morris, now aged 51 years old, works as a freelance website designer. He was married in 1989, when aged 27, but that marriage ended in divorce in 1995. From 2002 until 2013, Mr Morris lived in a domestic relationship with Ms Louise Stricke, and their daughter (the second plaintiff) was born on 24 November 2004. Mr Morris and Ms Stricke separated in April 2014, and are currently finalising their financial and parenting arrangements in the Family Court.
The Childhood of Mr Morris
Mr Morris holds the view that the deceased struggled with parenting, and that this made his childhood very difficult. From his earliest memories, Mr Morris’ recollection was that the deceased rarely displayed any warmth or affection towards him. He considered that the deceased had difficulty reaching out to him on an emotional level, or indeed any other level. The deceased constantly criticised his efforts, expecting him to think and behave like an adult, and this made Mr Morris feel quite inadequate. He described his childhood as being very rigid, normal mistakes of childhood not being acceptable to the deceased. He also felt that the deceased was not as hard on his two sisters, and that accordingly he was the target of most of the deceased’s angry outbursts.
Mr Morris said that his relationship with the deceased did not improve in his teenage years. He received a private education at Camberwell Grammar School for two years. He said that his first year at the school, Year 6, was awful, because he and other students were ‘abused by the teachers’, and his school marks suffered badly. He claimed that the deceased was adamant that he stay there for another year. The first defendant said that Mr Morris chose to leave the school and attend a public school.
From the age of 15, Mr Morris took every opportunity to spend time away from home, staying with school friends on the weekends, and when he was at home, he spent a lot of his time in his bedroom playing alone, as this was where he felt more comfortable. He said that he did this to avoid being picked on by the deceased. In 1980, when he was 18, he moved out of home and lived with friends. From that point on, he rarely returned home.
The Adult Years of Mr Morris
In 1989, when Mr Morris was aged 27, he married for the first time. He said that the deceased did not extend any emotional contact to him, or to his then wife, at that point or at any point. Mr Morris’ mother, the deceased’s first wife, died in 1989. In his words, Mr Morris said that his world was a lonelier place for him without his mother.
In 1990, the deceased married Mrs Morris. Mr Morris was asked to be best man at the wedding. Mrs Morris said she could see that the deceased was not close to his children and she endeavoured to do her best to bring them closer together as a family. To a certain degree, and for a time at least, she succeeded. Mr Morris would even go so far as to say that the deceased mellowed somewhat during the first few years after his remarriage.
Mr Morris said that in 1999, when he was 37 years old, he confronted the deceased about his behaviour, especially during his childhood. Mr Morris said that the deceased broke down in tears and apologised for his behaviour, saying that he was ‘ashamed’ of his conduct and had not meant to be that way. The deceased could offer no answer to the question of why he had never spent time with Mr Morris ‘like a normal father’.
Money Matters Affecting Mr Morris and the Deceased
Mr Morris initially said that during the six years he was married, from 1989 to 1995, the deceased did not provide them with any financial assistance. In particular, Mr Morris did not provide any assistance for what he regards as milestone moments in his life, such as his engagement, his wedding, or the purchase of their first house.
The first defendant however disagreed with this account, and said that the deceased did provide financial assistance to Mr Morris during his first marriage. She said that the deceased had contributed to the weddings of all of his children, including a substantial contribution to the cost of Mr Morris’ wedding. She said that he also received financial assistance to purchase his first car, to further his education at an arts college, and later in his business ventures.
On top of this, the first defendant said that the deceased also lent Mr Morris money on many occasions, that Mr Morris did not repay those loans, and that the deceased grew tired of Mr Morris’ excuses for not repaying those loans. She said that on one occasion Mr Morris obtained a loan from the ANZ Bank and asked the deceased to guarantee the loan, which the deceased did. When Mr Morris defaulted under the loan, the deceased was required to repay the amount owing to the bank.
In cross-examination, Mr Morris agreed that, when he was aged 18 or 19 years old, he purchased a car, and the deceased had guaranteed the loan for the purchase. He had repaid the loan for the car, but could not remember anything about a guarantee for a loan with the ANZ Bank. Mr Morris’ evidence was that the deceased gave him two loans in total — a loan of $4000 for the purchase of a computer, which he repaid, and another of $15 000 to assist with business debts, which he did not repay.
This business loan arose out of a business he started in 1996 with the second defendant called ‘Internet Page Maker’. By December 2001, the business suffered from a severe cash-flow shortage. Mr Morris said that Mrs Morris suggested to him that he borrow $30 000 from the deceased to alleviate this, and in response he expressed his concerns about the business cash-flow to the deceased. In the end, he reluctantly borrowed $15 000 from the deceased in order to pay the outstanding staff entitlements and overheads.
In late December 2002, the deceased asked Mr Morris to pay the interest due on the $15 000 loan. Mr Morris said that he gave the deceased a cheque for the interest but on the same day the second defendant actually closed the business bank account, so the cheque bounced. In January 2003, Mr Morris then gave the deceased another cheque from a new business account to pay the interest owed, but by February 2003 the business had ceased trading, and was placed in administration with the loan of $15 000 remaining unpaid.
Mr Morris said that he received a reminder invoice from the deceased for the re-payment of the $15 000 loan on his birthday, 16 April 2003. He rang the deceased and told him that he would probably have to bankrupt himself, as the business debts would be borne almost entirely by him, and not the second defendant. Mr Morris said that he explained to the deceased that his computer equipment, files, programmes, and resources were in the hands of the administrators, and as a result he had no way of earning an income. He said that the deceased seemed to understand what he was saying and told him not to worry about paying back the loan.
After the deceased died, Mrs Morris handed some of the deceased’s papers to the defendants, including a copy of a letter from the deceased to Mr Morris dated 14 April 2003, in which the deceased said that he was paying interest on the funds and asked Mr Morris to pay him the interest, explaining that he could not afford to be out of pocket.
A few days after the telephone conversation in April 2003, the second defendant and her husband arrived at Mr Morris’ home unexpectedly and demanded that he sign over his half share of the businesses tax losses, including for that financial year and the previous financial year. Mr Morris said that he told his sister that he needed to get legal advice, but she threatened him with bankruptcy. The stress of these matters, and the long hours of his work, caused Mr Morris to be sick and extremely exhausted, and he said he was at the time diagnosed with chronic fatigue syndrome. He decided to go bankrupt, which he did on 5 May 2003.
The first defendant said that the deceased told her on several occasions that he had lent Mr Morris the sum of $15 000, which he did not repay. At a family meeting in 2007, the deceased said that Mr Morris had told him that he intended to leave the deceased off the creditors list and that he would repay the deceased one day but the deceased had subsequently received a letter in the mail listing the deceased as a creditor of the business. The first defendant said it was the principle that had troubled the deceased, that is, Mr Morris had borrowed money from a family member and did not repay it.
Contact between Mr Morris and the Deceased
The first defendant deposed that the deceased’s emotionally cool and somewhat detached nature meant that he treated his children in the same manner, although in his later years, she said that the deceased developed a warmer personality. He enjoyed playing golf and going to the football with the defendants. They had family dinners, often met for coffee at the local shops and had telephone conversations. The first defendant said that, although the deceased had regular contact with the defendants and their children, he never met the second plaintiff. She said that Mr Morris never visited the deceased to introduce his daughter to him; nor did he give his telephone number or address to the deceased.
The first defendant said that Mr Morris did not make any effort to maintain contact with the deceased and the relationship between them did not develop in the same way as with the defendants. She said that Mr Morris chose to distance himself from the deceased, particularly during the last decade of the deceased’s life.
By 2002, Mr Morris was living with Ms Stricke. Ms Stricke said that she found the deceased aloof when she first met him, and that the deceased usually denigrated someone or something. In particular, he often criticised things that he had paid for or complained that he had been ripped off by someone. Ms Stricke referred to two instances when this occurred in around 2003 and 2004. Mr Morris said his contact with the deceased was regular up until April 2003 and after that he described his contact as follows:
(a)He left Victoria in June 2003 and travelled to the west, settling in Perth. He said that he wrote to the deceased and Mrs Morris explaining his need to get away from everything, and reiterated that he was still unable to repay the $15 000. He received no reply to his letter. In cross-examination, Mr Morris said that, after the business was put into administration, he travelled around Australia for nine months.
(b)In September 2004, he called the deceased to tell him that he and Ms Stricke had settled in Mildura and were expecting their first child in December. The deceased responded by saying ‘right’ and neither the deceased nor Mrs Morris called them back.
(c)On 24 November 2004, Mr Morris called the deceased and told him of the birth of the second plaintiff. He said the deceased seemed genuinely happy at the news but did not call back to ask how the mother and baby were progressing.
(d)Mr Morris and Ms Stricke remained in Mildura in 2005 and 2006. Mr Morris said that he spoke to the deceased and Mrs Morris a number of times during that period.
(e)In November 2007, Mr Morris and Ms Stricke moved to Echuca. They had no contact with the deceased whilst they lived there for six months.
(f)In mid-March 2008, Mr Morris called the deceased from the Monash Medical Centre to find out whether there was any family history of the type of health problems that the second plaintiff was suffering from. Mr Morris said that neither the deceased nor Mrs Morris ever called back with a response.
(g)On 24 November 2008, Mr Morris said that he received a birthday present of clothing and a card from the deceased for the second plaintiff’s birthday, after which they wrote a thank-you card and included their updated contact details.
In relation to Mr Morris’ description of his contact with the deceased and her between April 2003 to November 2008, Mrs Morris said that Mr Morris had exaggerated the extent of his contact with them. She agreed that they received correspondence from Mr Morris but, in all pieces of written correspondence, Mr Morris omitted to include a return address, which meant that they could not respond to his letters. Mrs Morris said that every time Mr Morris rang them, he did not leave a return telephone number. She said that Mr Morris did not have a mobile phone number or, if he did, he did not leave the number with them. Mrs Morris agrees that, in the telephone call from the Monash Medical Centre, Mr Morris did try to leave a return number. However, the message was so garbled and indecipherable that they could not return his call and Mr Morris did not call back to chase up his query. She said that Mr Morris never made any attempt to come and see the deceased with his family.
Mr Morris said that, even though he and his family had resided in the country for some time and had relocated a number of times, they always informed the deceased and Mrs Morris of their new contact details and regularly sent e-mails and photographs of the three of them. He said that they rarely received any response from the deceased or Mrs Morris. Mrs Morris disputed that Mr Morris always informed them of our new contact details.
In cross-examination, Mr Morris agreed that when he contacted the deceased and Mrs Morris by letter he did not give them a return address. He said that this was because he e-mailed them regularly. He also disagreed that he never left them a telephone number or postal address. The first defendant deposed that the deceased told her on many occasions that Mr Morris never told him where he lived.
Mrs Morris insisted that the reality was that, for as long as she knew the deceased, Mr Morris made very little effort to contact the deceased and Mr Morris made himself very difficult to be contacted. She said that she and the deceased had no contact telephone number for Mr Morris. Mrs Morris exhibited a copy of a letter from Mr Morris that they received in about March 2004. In his evidence, Mr Morris complained that the deceased did not reply to the letter. Mrs Morris said that, again, Mr Morris did not provide the deceased or her with a return address so that they could contact him. In that letter, Mr Morris stated that he had not stayed in communication with the deceased and Mrs Morris for the last six to twelve months because he was depressed about the failure of his business.
Mrs Morris also said that Mr Morris personally wrote to her in August 2004 to apologise for ‘being out of touch for so long’, but that once more, he did not provide her with a return address. In that letter Mr Morris also stated that the deceased did not understand him or know him very well. He indicated that he appreciated the money that the deceased had lent him for his failed business and was not in a position to pay the money back. He said that after the collapse of the business in 2003 and his subsequent bankruptcy he lived with Ms Stricke in a tent so that no one knew where he was or could get in contact with him.
In Mr Morris’ affidavit sworn 14 December 2010, he deposes that he could have easily been tracked down by a Google search of his name on the internet. Mrs Morris disagreed. She said that Mr Morris and his family were itinerant in the 10 or so years before the deceased died, and as a result it was impossible for them to keep track of his movements. She said that, when Mr Morris did contact the deceased and her, it was always on his terms, and from different locations around Australia. He did not leave telephone numbers or forwarding addresses when he did contact them, which meant that they could not contact him. Mrs Morris said the deceased lived at his Croydon property for 38 years with the same telephone number throughout, and that Mr Morris knew where to find the deceased. Mrs Morris said that the period of separation and distance between Mr Morris and the deceased were on Mr Morris’ terms.
Mrs Morris said that the deceased was regularly undergoing periods of treatment for cancer and scoliosis between 1994 and his death. From 1994, when he was diagnosed with secondary prostate cancer, they were always living under a cloud of worry and looking for ways to combat the disease. Mrs Morris said that they had more than enough worries, and to claim that they actively shut Mr Morris out of their lives is both over-dramatic and untrue.
The Death of the Deceased
Mr Morris said he was not advised of the deceased’s diagnosis with terminal cancer, his illness, his death or his funeral. After his father’s death, he said Mrs Morris telephoned him in Yarrawonga on 17 or 18 March 2010 to tell him his father had died from cancer. She then said to him ‘you must contest the will’. He said that Mrs Morris subsequently told him on 20 March 2010 (in person, when he was in Melbourne) that the deceased had been diagnosed with a terminal illness back in April 2009, that on 23 February 2010 the deceased’s blood tests showed that his organs were shutting down, and that his death was only days away. She told him that his sisters were immediately contacted and advised of the results and findings. The deceased died on 27 February 2010.
Mr Morris subsequently discovered that on 1 March 2010 the death notices and details of the deceased’s funeral were published in the Herald Sun newspaper. The death notice included him, Ms Stricke and the second plaintiff as family of the deceased. He said this was done without his consent or knowledge.
The deceased’s funeral was held in Melbourne on 3 March 2010. Between 4 March and 16 March 2010, the reading of the will took place but Mr Morris said he was not informed or included in the meeting. Mr Morris considers that he was not told of the deceased’s medical condition, his death, his funeral or the reading of the will at the instigation of Mrs Morris and the defendants.
In cross-examination, Mr Morris agreed that Mrs Morris told him in 1994 that the deceased had been diagnosed with secondary prostate cancer.
The first defendant deposed that in about 1992 the deceased first informed all of his children that he had prostate cancer. Soon after, he had an operation to remove his prostate gland and, about a year later, he was diagnosed with secondary cancer and told his life expectancy was reduced to only five years. She said that from 1992 until they became estranged in 2003, Mr Morris was well aware of the progress of the deceased’s illness. From 2003, Mr Morris never enquired about the deceased’s health, and the deceased was hurt by his son’s lack of interest in him. He used to say that if Mr Morris cared about him he would have made the effort to ask about his health. As the deceased’s condition deteriorated in the last couple of years of his life, the deceased made it clear to the defendants that he did not want Mr Morris to know how sick he was and that when he died he did not want Mr Morris attending his funeral. He specifically said that he did not want Mr Morris to be contacted upon his death, because he said that he knew Mr Morris would contest his will. He commented that Mr Morris would have no hesitation in wasting money from the estate because it would not be his money, and Mr Morris would not care how much money he wasted.
Mrs Morris said that Mr Morris knew that the deceased had been diagnosed with secondary prostate cancer in 1994 and had been told that he had between four and six years to live. She said that despite this Mr Morris made no effort to contact the deceased or offer him any support either after his diagnosis or while he was sick.
The Deceased’s Statement concerning Mr Morris in His Will
Mr Morris said that he has no idea what the deceased is referring to in cl 13(b) of his will when he refers to the ‘behaviour’ of Mr Morris. He disputes that the deceased provided ‘adequate financial support [to him] throughout his lifetime’. As stated above, he said the deceased afforded him no financial assistance of any kind in relation to his key lifetime events, such as turning 21, his engagement, his marriage or buying a home. He said that the only loans he received from the deceased were the $4000 loan to purchase a computer for use in his business and the $15 000 loan for the business.
The Second Plaintiff
The second plaintiff was born on 24 December 2004. In his affidavit sworn 14 December 2010, Mr Morris said that the second plaintiff should have started school that year but because of her medical condition she was not able to do so.
In cross-examination, Mr Morris said that the second plaintiff has a number of disabilities, some mild and others more pronounced. He described the disabilities as a non-verbal learning disorder with a problem processing information and learning things in a non-verbal manner. He said these conditions are similar to the conditions seen in people with cerebral palsy. He agreed that the reports exhibited to his affidavit sworn 31 March 2011 do not refer to cerebral palsy, and further agreed that the second plaintiff has not been diagnosed with cerebral palsy.
Mr Morris said that the second plaintiff’s medical and therapy requirements and her special school needs are extremely expensive, and he and his partner would struggle to afford them. In his affidavit, sworn 22 April 2013, Mr Morris attached letters setting out the cost of therapy, the cost of a reading program, and the costs of occupational and physiotherapy sessions, and also sets out Mr Morris’ view of the second plaintiff’s condition and details the requirements for her ongoing care. Mr Morris agreed that the specified costs and needs are general estimates, not specifically referable to the second plaintiff.
In order to cope with her learning difficulties, Mr Morris said that the second plaintiff needed extra help, such as one-on-one learning or an aide with her in the classroom. Mr Morris said that the second plaintiff would start school in February 2011, but that she did not qualify for a teacher’s aide. The first defendant submitted that, if the second plaintiff does not qualify to have the assistance of a teacher’s aide, then presumably her condition is fairly moderate and she does not need one.
Mr Morris was referred to paragraph [38] of his second affidavit sworn 31 March 2011, which referred to a report setting out the lifetime costs of an individual with an intellectual disability. Mr Morris agreed that the report was not exhibited to his affidavit, and was not produced by him at trial. He did not produce any evidence as to the actual costs of caring for someone with a disability.
The first defendant claims that the deceased did not ever meet the second plaintiff. Mr Morris said that he did not take the time to see the deceased and Mrs Morris with his daughter because his father was not interested. In his re-examination, he said that he based this view on a number of incidents:
(a)When he told the deceased that he and Ms Stricke were having a child, the deceased answered ‘right’; and
(b)When he called the deceased to tell him that his daughter had been born, the deceased did not follow up with him about the progress of either Ms Stricke or his daughter.
He acknowledged that the deceased and Mrs Morris did send a gift for the second plaintiff when she was when she was about 3 or 4 years old.
In a short affidavit sworn 30 May 2011, the litigation guardian for the second plaintiff deposed that the second plaintiff’s medical condition and special needs were ongoing but otherwise gave no detail of them.
The Assets and Liabilities of Mr Morris and His Family as at April 2013
At trial in April 2013, Mr Morris deposed that he and Ms Stricke are hard-pressed financially.
Mr Morris’ annual income is approximately $40 000 per annum from his freelance web design, and includes his carer’s payment of $11 000 for the care of the second plaintiff. Ms Stricke has an annual income of $12 000 from a disability support pension. He valued their household effects at approximately $10 000 and his tools of trade (computer equipment) he values at $4000.
He and his family live in a three bedroom brick veneer home owned by Ms Stricke valued at approximately $340 000. It is mortgaged with approximately $262 000 owing. Mr Morris has credit card liabilities of $10 000. Ms Stricke has personal loans of $45 000 and credit card liabilities of $4000.
Ms Stricke has reflex sympathy dystrophy affecting her left leg, following an ankle injury suffered in 1994. Additionally, Mr Morris considers Ms Stricke should attend a clinic called Custom Prosthetic Designs in the United States for a prosthetic and fitting to her left ear, which she lost as a result of her suffering severe burns to her body. He has been informed that the relevant prosthetics and fittings are unavailable in Australia and the cost of the exercise is estimated at $35 000.
Mr Morris and Ms Stricke also have extensive medical costs for the second plaintiff, who is required to take a critical medication that until recently cost $200 per bottle but, because it is now covered by Pharmaceutical Benefits Scheme, now costs $33 per bottle.
The Assets and Liabilities of Mr Morris as at November 2013
In his affidavit sworn 15 November 2013, Mr Morris deposed that he separated from Ms Stricke in late April 2013 and that they are currently engaged in family law proceedings relating to property and parenting matters. He is currently renting and deposes that he continues to pay half the mortgage, rates and insurance on the former family home. The family home is now valued between $290 000 and $310 000 and the amount owing on the mortgage has reduced to $255 000. He owns a car valued at $11 000 and has $6800 in the bank. In addition, he has furniture, household effects and computer equipment of approximately $27 000, trade debtors of $2650 and trade creditors of $1750.
Mr Morris lists his liabilities at $38 050, made up as follows:
(a)
a car loan
$9000
(b)
credit cards
$10 000
(c)
electricity
$250
(d)
rates
$300
(e)
outstanding school fees
$500
(f)
outstanding family law fees
$18 000
Mr Morris listed his monthly expenses as totalling $4530. He did not refer to his income as at November 2013.
Applicable Principles
The principles for applications for provision made under s 91 of the Act are set out in Patricia Morris v Smoel.[4] It is unnecessary to repeat the general principles other than to reiterate that the Court must decide:
(a)At the date of his death, whether the deceased had a responsibility to make provision for the maintenance and support of an applicant;
(b)If so, whether the deceased’s will made adequate provision for an applicant’s proper maintenance and support; and
(c)If not, the amount of provision that should be ordered.
[4][2014] VSC 31 (14 February 2014) [30]–[36] (McMillan J).
In considering these questions:
(a)The Court must have regard to the matters set out in ss 91(4)(e)–(p), outlined below at [83]–[123];
(b)The Court must determine whether the deceased had a moral duty, responsibility or obligation to the applicant;
(c)Keeping in mind the weight given to the freedom of testation, the Court will only interfere if the testator has failed in his or her moral duty; and
(d)That moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards.[5]
[5]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 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Andrew v Andrew (2012) 81 NSWLR 656, 660 (Allsop P), 679–80 (Barrett JA).
In Slack v Rogan, White J discussed what is meant by ‘community standards’ or ‘community values’ in interpreting s 59 of the Succession Act 2006 (NSW).[6] He said:
I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least in so far as it goes beyond allowing provision to be made in favour of spouses and minor or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able bodied son, or that a widow's claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision.[7]
[6][2013] NSWSC 522 (10 May 2013) [124]–[125] (White J).
[7]Ibid [125].
In Phillips v James, Basten JA, in considering the concept of prevailing community standards in the context of a dispute between siblings, made the following apposite statement:
There is probably a reasonable level of acceptance for the view that, other things being equal, siblings should be treated broadly equally. Unfortunately, other things rarely are equal. One sibling may have shown devotion and care to the testator over a long period; another may have had minimal contact of any kind during his or her adult life. One sibling may have acted responsibly in relation to his or her own family, another as a wastrel.
The latter example highlights a particular difficulty: the responsible sibling (who may have been favoured by the testator) may be better off than the other and less in need than the other who has made nothing of whatever opportunities were available. One approach in the latter case is to say that the wastrel should not expect more, despite being in greater need, than a proportionate share of the estate. In relation to the former case, involving the inattentive or distant sibling, a less than equal share may be thought appropriate.[8]
[8][2014] NSWCA 4 (6 February 2014) [113]–[114] (Basten JA).
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 set out in Briginshaw v Briginshaw[9] are applicable.[10] In Webb v Ryan, Whelan J referred to the difficulties in assessing the evidence in Part IV claims when he stated:
An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.[11]
[9](1938) 60 CLR 336, 362, 368–9 (Dixon J).
[10]Schmidt v Watkins [2002] VSC 273 (24 July 2002) [17]–[21] (Harper J). See also Webb v Ryan [2012] VSC 377 (3 September 2012) [21] (Whelan J), State Trustees Ltd v Bedford [2012] VSCA 274 (16 November 2012) [104] (Neave JA).
[11][2012] VSC 377 (3 September 2012) [22] (Whelan J).
Although the value of the estate is now small compared to its value as assessed at the date of death of the deceased, the Court is still required to consider all the relevant circumstances before a decision is made — there is nothing in the Act excluding the possibility that orders for further provision be made from a small estate.[12] The size of the estate is nevertheless significant in that, in some circumstances, not all of the claims against the estate can be met. In such a case, the Court must give weight to the paramount claim.[13]
[12]Re Clayton [1966] 2 All ER 370, 371–2 (Ungoed-Thomas J).
[13]Cropley v Cropley [2002] NSWSC 349 (26 April 2002) [56] (Barrett J).
Adult Children
The general principles to be borne in mind when dealing with claims by adult children are succinctly set out by Hallen J in Walsh v Walsh:[14]
(a)It is impossible to describe the moral obligation or community expectation of a parent in respect of an adult child in terms of universal application.
(b)Generally, the community does not expect a parent to look after his or her child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child had been unable to accumulate superannuation or to make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute is also appropriate.
(c)There is no need for an applicant child to show some special need or some special claim in order to be entitled to further provision.
[14] [2013] NSWSC 1065 (12 August 2013) [121] (Hallen J).
Acrimony or Estrangement
Acrimony or estrangement between an applicant and the deceased is a consideration, particularly in assessing the existence and extent of any responsibility of the deceased for the provision of maintenance and support of an applicant. The nature of the acrimony or estrangement and the underlying reasons for it are relevant, although the considerations involved between an applicant and a deceased are complicated and the reasons are usually complex. There are no bright-line rules of law in relation to estrangement, and the individual circumstances of each case are critical.[15] In Re Buckland Adam J said:
It is now well recognised that in determining the strength of the moral claim of an adult child upon its parent, and correspondingly the measure of proper maintenance to be provided by a testator in all the circumstances, it is proper to take into account the conduct of the claimant towards the testator and their mutual association and the closeness of the bond existing between them.[16]
[15]Andrew v Andrew [2011] NSWSC 115 (4 March 2011) [74] (Hallen AsJ)
[16][1966] VR 404, 413 (Adam J).
Counsel for the plaintiffs specifically referred the Court to the decision of Ormiston J in this Court in Collicoat v McMillan.[17] There, his Honour expressly rejected the ‘assertion’ of Murphy J in Hughesv National Trustees[18] that the character and conduct of the applicant were directly relevant to the question of adequate provision.[19] His Honour instead described the position as he understood it:
Their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator’s obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour. … It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.
…
What is right and proper, and thus what the wise and just testator must do, is not determined by the ‘character and conduct’ of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected the testator that he or she is in good conscience entitled to make a lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.[20]
[17][1999] 3 VR 803.
[18](1979) 143 CLR 134, 157–60 (Murphy J).
[19][1999] 3 VR 803, 816–7
[20]Ibid 817–8.
However, and as his Honour recognised:
I consider that the expression ‘moral duty’ remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for the proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances.[21]
[21]Ibid 819.
In Browne v Macaulay, Murray J considered that a long estrangement between father and son ‘particularly in later years … may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely’.[22] In Ford v Simes, Bergin CJ in Eq, dismissing an appeal from the decision of a trial judge to refuse further provision in a case of estrangement between father and son, said:
It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children.This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.[23]
Although that appeal was in the context of the New South Wales regime, which requires that special circumstances be established in order for further provision to be made from the testator’s ‘notional estate’, His Honour’s comment on the entitlement of testators to make no provision for children was not so limited.
[22][1999] WASC 208 (2 November 1999) [19] (Murray J).
[23] Ford v Simes [2009] NSWCA 351 (6 November 2009) [71] (Bergin CJ in Eq).
Reasons Given by Testator in His Will
Under the Act, the Court may also have regard to a testator’s reasons for making the dispositions made by a will or for not making provision for a person who subsequently makes application under the Act.[24] The testator’s reasons cannot, however, supplant the Court’s consideration of the matters required to be considered under s 91(4)(e)–(p) of the Act. Assertions by a testator are not evidence of the truth of the facts or circumstances referred to but they may provide an explanation.
[24]Administration and Probate Act1958 s 94(c).
Grandchildren
Since the amendments to the Act on 20 July 1998, the general rule is that a grandparent does not have a responsibility to make provision for a grandchild. That is, the relationship itself does not create an obligation. Such a moral obligation rests on the parent of the grandchild.[25] However, it is clear that no person can be automatically excluded as a person to whom a testamentary obligation was owed.[26] In Harris v Bennett [No 1], McDonald J refused an application for summary dismissal of a claim by a grandchild on the basis that it could not be said the claim was ‘so obviously untenable that the infant plaintiff cannot possibly succeed’.[27]
[25]Sherlock v Guest [1999] VSC 431 (12 November 1999) [25] (Beach J).
[26] Petrucci v Fields [2004] VSC 425 (29 October 2004) [64] (Mandie J), Iwasivka v State Trustees Ltd [2005] VSC 323 (18 August 2005) [12] (Hansen J), Estate of Vourdoulidis [2013] VSC 34 (3 April 2013) [107]–[108] (Zammit AsJ).
[27] (2002) 8 VR 411, 424.
In MacEwan Shaw v Shaw, Dodds-Streeton J reviewed and considered the grandchildren cases.[28] Her Honour, bearing in mind that all cases must turn on their own facts, identified a number of principles that may be applied to claims by grandchildren:
[28](2003) 11 VR 95, 105–9.
(a)usually, the moral obligation to provide for a grandchild rests on the child’s parents, not the grandparents;
(b)thus, the mere fact of a family relationship between the grandparent and grandchild does not of itself establish a responsibility to provide for the grandchild;
(c)significant generosity by a grandparent to his or her grandchild, including contributions to the education of the grandchild, does not convert the grandparental relationship into one of obligation to the recipients. In other words, voluntary support, generosity and indulgence do not translate into a legal obligation to provide for the grandchild;
(d)the fact that the grandchild resided with both or one of his or her parents is a most significant factor. If the parent provides shelter, accommodation, food and clothing then the court is most unlikely to find that a deceased grandparent assumed a responsibility to provide in his or her will for the grandchild;
(e)if the deceased grandparent is survived by his or her spouse, the spouse’s claim to the estate of his or her late spouse would normally be paramount over any claim that a grandchild might have;
(f)where a grandchild has lost his or her parents at an early age, been taken in by the grandparents in circumstances where the grandparents assume the role of surrogate parents, and the grandparents die when the grandchild is still dependent upon them, these factors would prima facie give rise to a claim by the grandchild to be adequately provided for out of the estate of the deceased grandparent; and
(g)the fact that the parents, or either of them, of a grandchild has predeceased the grandparent may be a relevant factor in support of claim made by a grandchild.
In summary, Dodds-Streeton J said:
The familial generosity of a grandparent should not, in the absence of other relevant circumstances, be recognised as the basis of a direct responsibility to make further, testamentary provision for the private education of a grandchild who is in parental care, particularly when the grandparent’s chosen beneficiary is his or her surviving spouse of longstanding. The fact that the child’s parents are of modest means, while the estate could satisfy the claim without significant adverse impact on the chosen beneficiary, will not, without more, found a grandparental responsibility to provide maintenance and support.[29]
[29] Ibid 122.
The Submissions of the Plaintiffs
Counsel for the plaintiffs submitted that there was no challenge to the matters asserted by Mr Morris, and that Mr Morris received no real benefits from the deceased during the deceased’s lifetime. He further submitted that there was nothing in relation to Mr Morris’ conduct that would disentitle him to provision being made for him. In support of this submission, the plaintiffs pointed to the following:
(a)The issue of the non-repayment of the loan of $15 000 irritated the deceased ‘totally beyond its importance in the scheme of things’, and this coloured the deceased’s relationship with Mr Morris. This, it was submitted, was an irrational approach for the deceased to take in the circumstances.
(b)The deceased’s complaints that Mr Morris was ‘off the air’, not communicating at all, and not leaving his addresses or telephone numbers confirms that the deceased’s conduct was irrational. Mr Morris could not provide any explanation for the deceased’s conduct other than matters touched upon in the evidence. It was submitted that the deceased was as much to blame for his relationship with Mr Morris, and the fact that he had no contact with his son in fact supports the conclusion that the deceased’s conduct was capricious.
In respect of his financial needs, Mr Morris submitted that he has onerous responsibilities supporting the second plaintiff, whose medical issues are substantial. He also submitted that he has ongoing responsibilities for his former partner. Coupled with this, he is in a weak financial position relative to the defendants, and has significantly less income. There is no evidence to suggest that Mr Morris is not hardworking and industrious, but rather his financial problems arise from the nature of his work. By contrast, the defendants are in a sound financial position, and the superannuation entitlement from the Morris Family Superannuation Fund can be assumed to increase their financial position.
The financial position of Mrs Morris, Mr Morris argued, was of her own making, and she has obtained moneys before and after death the deceased from the Morris Family Trust. Mr Morris also relied on the fact that Mrs Morris did not tell Mr Morris about the deceased’s health issues, his death and his funeral.
The provisions in the will of the deceased giving reasons for leaving Mr Morris a small legacy are the only evidence of his reasons. The rest of the evidence on this point consists merely in comments made by witnesses as to deceased’s disenchantment, disappointment or anger about the loan and this is reflected in his will.
Finally, it was submitted that this is a large estate dissipated by legal and accounting costs out of proportion to what is involved in the estate, and that dissipation should not reduce the entitlement of Mr Morris or the second plaintiff.
Summary of the Considerations under s 91(4) of the Act
To determine the plaintiffs’ claims, the Court must consider the matters contained in ss 91(4)(e)–(p) of the Act.
(e)Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.
Mr Morris is an adult child of the deceased. Notwithstanding his view, he was given a start in his life by the deceased and financial assistance in his early years with his first wedding, his car, a computer and his business with the second defendant.
The relationship between the deceased and Mr Morris has been difficult for all of Mr Morris’ life. He left home in 1980 aged 18 years old. Their relationship was remote for the whole of the deceased’s life, in contrast to the deceased’s relationships with the defendants, particularly in their adult years.
From 2003 onwards, there was virtually no contact or only sporadic and limited communication between the deceased and Mr Morris. Mr Morris viewed his contact with the deceased in that time as being slightly more than how it was portrayed by the defendants and by Mrs Morris. Where there is a conflict between the evidence of Mr Morris and the evidence of the defendants and Mrs Morris on this point, I accept their evidence and not the evidence of Mr Morris. Mr Morris made virtually no effort in his relationship with the deceased in his adult years, even when he knew that the deceased had been diagnosed with cancer and had only a limited life expectancy.
Mr Morris was unable to take any responsibility for the failure of the relationship with the deceased, and blamed the deceased for the failure. He expected that the deceased should make the effort, as well as provide for him, and complained that the deceased did not pay for significant events in his life.
Although he ultimately accepted that he knew as early as 1994 that the deceased was diagnosed with cancer, Mr Morris did not communicate in any meaningful way with the deceased or attempt to mend their broken relationship. He did not visit the deceased, particularly from 2003 onwards. His itinerant lifestyle and failure to leave any contact details when he did make limited contact meant that he was impossible to contact. His minimal contact with the deceased was on his terms alone, as he never left a forwarding address (a fact he accepted) or a telephone number. The deceased lived at the same address and had the same telephone number for the last 38 years of his life. At all times, Mr Morris knew where and how to locate or contact the deceased.
Mr Morris did not offer any assistance to the deceased or Mrs Morris as his health deteriorated during the last years of his life.
In his will, the deceased stated that one of the reasons that he left Mr Morris a small legacy was his behaviour towards him. Mr Morris had no insight as to what the deceased meant by this statement. The other reason given by the deceased was the failure of Mr Morris to repay loans owing to the deceased. The defendants’ evidence substantiated the view taken by the deceased. Mr Morris took the view that it was unreasonable that the loan should be repaid, again having no insight as to his obligations and choosing not to explain his position to the deceased.
The second plaintiff is a granddaughter of the deceased. Apart from the bare fact of the familial connection, the deceased had no relationship with the second plaintiff. He did not ever meet the second plaintiff during his lifetime. Insofar as it is said by Mr Morris that the second plaintiff may have health issues or disabilities, there is no evidence that the deceased was aware of or knew of them.
(f)Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.
The deceased considered that he did not have any obligations or responsibilities to the plaintiffs. In cl 13(b) of his will, the deceased set out his reasons for providing no more than a legacy of $10 000 to the first plaintiff. The evidence of the defendants supported the deceased’s views and the reasons for them.
The deceased had no obligations or responsibilities towards the second plaintiff.
The deceased considered that he had obligations or responsibilities to his widow, Mrs Morris and his two daughters, the defendants. All had loving relationships with the deceased.
In cl 13(a) of his will, the deceased also set out the further mechanisms put in place by him outside his will to ensure that his widow had proper and adequate provision after his death.
In cl 13(c) of his will, the deceased set out his reasons for providing greater provision for the defendants, as opposed to Mr Morris and Mrs Morris, those being that they ‘have been extremely supportive of him during times of past difficulty’. The evidence of the defendants supported the deceased’s views.
(g)The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject.
I have already set out the size and nature of the estate of the deceased as at the date of death, at the date of trial and in the updated material filed in November 2013.
(h)The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.
I have set out what Mr Morris states are his financial resources, including earning capacity, at the relevant times. They are limited. Since his separation, he says that he has incurred a further substantial liability of $18 000 in relation to his family law proceedings. Based on his statements, it appears that he does not have the financial capacity to pay that liability.
The evidence of Mr Morris’ financial resources comprised assertions by him. He failed to produce any documents in evidence in support of his assertions as to his financial resources, his earning capacity or his liabilities.
The second plaintiff is a nine year old child. She is described by Mr Morris as having certain disabilities. The disabilities were not substantiated by any medical evidence and no documents were produced in evidence to substantiate the future financial needs of the second plaintiff.
Mr Nathan Ashman represents the estate of Mrs Morris. In his affidavit sworn 15 November 2013, he deposed that, in the week commencing 18 November 2013, he would make an application for administration of her estate. Her estate is insolvent. On 19 December 2013, a sequestration order was made in respect of her estate.
The financial needs of the defendants are not in issue. Although the defendants have judgments in their favour in the superannuation proceeding, it is unlikely that the judgment will be satisfied because of the actions taken by Mrs Morris in relation to the assets of the Morris Family Superannuation Fund and the recent insolvency of the estate of Mrs Morris.[30] It was the deceased’s intention that the defendants receive his superannuation entitlement; however, they will now only receive part of that entitlement owing to Mrs Morris’ actions, including using the deceased’s funds to pay her legal and accounting expenses and those of the trustee of the Superannuation Fund to defend the superannuation proceeding.
(i)Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.
[30] Patricia Morris v Smoel [2014] VSC 31 (14 February 2014) [8] (McMillan J).
There is no evidence of Mr Morris having any particular physical or mental disability.
The disabilities of the second plaintiff were described in general terms by Mr Morris. As stated, there is no evidence to support the claimed disabilities or the asserted severity of them. No evidence was given in the respect of the asserted disabilities of the second plaintiff from medical practitioners. The evidence of her disabilities is inconclusive as to the nature and extent of any disability, any possible treatments, any prognosis in respect of the disability, any cost of ongoing care, and the extent to which Mr Morris or the second plaintiff could receive benefits or rebates for any of the care that might be needed for her.
There is no evidence that the deceased ever knew that the second plaintiff was suffering from any disability or condition. Mr Morris or Ms Stricke did not give any evidence that they told the deceased or Mrs Morris about any health issues of the second plaintiff.
(j) The age of the applicant.
Mr Morris was born in 1962 and is aged 51 years old.
The second plaintiff was born in 2004 and is aged 9 years old.
(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.
There have been no contributions by the plaintiffs to the building up of the estate of the deceased, to his welfare or to his family.
(l)Any benefits previously given by the deceased person to any applicant or to any beneficiary.
Mr Morris gave evidence that he received loans from the deceased. The defendants also gave evidence of financial assistance given by the deceased to Mr Morris when he was a teenager and later for his business with the second defendant. The business failed and Mr Morris has never repaid the loan of $15 000 from the deceased. Mr Morris did not challenge the defendants’ evidence of the financial benefits given by the deceased to Mr Morris. I accept the defendants’ evidence on the number and amount of the financial benefits given to Mr Morris.
The deceased took the view that Mr Morris should have repaid the loan for the business and Mr Morris simply failed to address the issue with the deceased. By 2003, Mr Morris’ business with the second defendant was placed in administration. The loan was not repaid by Mr Morris, and the deceased was listed as a creditor in the administration of the business despite Mr Morris’ promise to repay the loan.
By 2003, the deceased and Mr Morris had virtually no contact and the deceased did not have any knowledge of the financial situation of Mr Morris. Mr Morris was not receiving any financial support from the deceased at the date of the deceased’s death.
There was no evidence of any loans to the defendants or Mrs Morris by the deceased. The deceased provided the financial support for Mrs Morris during their marriage, with Mrs Morris’ financial input consisting of $90 000 at the beginning of the marriage.
(m)Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.
The applicant was not being maintained by the deceased.
(n) The liability of any other person to maintain the applicant.
There is no other person liable to maintain Mr Morris.
As explained above, moral obligations to maintain a grandchild ordinarily rest with the child’s parents, not their grandparents. As there is nothing in these circumstances to displace that, Mr Morris is liable to maintain the second plaintiff.
(o) The character and conduct of the applicant or any other person.
I have referred to Mr Morris’ lack of contact with the deceased, particularly over the last 10 years of the deceased’s life, in circumstances where he knew that the deceased had been diagnosed with cancer. Mr Morris deliberately chose to remove himself and his family from any contact with the deceased, Mrs Morris and his sisters.
Mr Morris has a strong sense of entitlement from others and blamed others, including the deceased, for his initially distant, then later non-existent, relationship with the deceased. He is unable to take any responsibility for the failure of that relationship.
Mrs Morris had a strong willed personality, and initially encouraged Mr Morris to contest the deceased’s will. She had a strong antipathy towards the defendants, taking the view that she should have been the principal beneficiary of the deceased’s estate. I have considered her position in detail in Patricia Morris v Smoel.[31]
[31]Ibid [61]–[65].
(p) Any other matter the Court considers relevant.
The defendants issued proceedings seeking further provision from the estate of the deceased. That proceeding was discontinued by consent on 23 April 2013, as a result of the judgment in the superannuation proceeding. I have already referred to the fact that the defendants will be unable to collect their full financial entitlement arising from the judgment. It is a substantial monetary shortfall.
Mrs Morris’ Part IV claim was heard at the same time as this proceeding. Mrs Morris’ Part IV claim against the estate was dismissed with judgment delivered contemporaneously with this proceeding.[32]
[32]Ibid [72], [74].
In considering what he ought to have done in all of the circumstances of the case, the provisions of the deceased’s will demonstrate that he considered carefully those he wished to benefit and, primarily, that was Mrs Morris and the defendants.
The deceased had a close and loving relationship with the defendants. This was supported by the evidence of the defendants and not disputed by Mrs Morris or Mr Morris. The deceased found the defendants extremely supportive and he reiterated this in his will. He appointed them as his executrices and left them his residuary estate, subject to the life interests to Mrs Morris.
The value of the residuary estate is now dramatically reduced for the reasons already stated. This could not have been foreseen by the deceased. This dramatic reduction has primarily occurred as a result of Mrs Morris pursuing or defending losing litigation against the estate and the defendants. The plaintiffs in this proceeding were notified of this litigation and were always aware of the possible impending financial consequences of the litigation on the size of the estate. The diminished size of the estate means that the defendants will not enjoy the benefits intended by the deceased, after the death of Mrs Morris, of a much larger residuary estate.
Mr Morris’ Application
In certain circumstances, a testator has an entitlement to make no provision or limited provision for a child. After all, it is the deceased who is in the best position to determine what provision is proper and considerable weight should be given to his testamentary wishes.[33] In Patricia Morris v Smoel,[34] I concluded that the provisions of the deceased’s will demonstrate that he considered carefully those he wished to benefit. He took great care to achieve a proper and adequate balance between his widow and his daughters of his first marriage and explained why and how that balance was to be achieved.
[33] Slack v Rogan [2103] NSWSC 522 (10 May 2013) [127] (White J).
[34] [2014] VSC 31 (14 February 2014) [70] (McMillan J).
In respect of his provision for Mr Morris, the deceased also considered carefully what provision he would make for him and he explained clearly the reasons for that provision. I accept those reasons, particularly having regard to the uncontested evidence of the defendants. I reject the submissions of Mr Morris that the deceased conducted himself in a capricious and irrational manner.
The estrangement between Mr Morris and the deceased, and the acrimony by Mr Morris towards the deceased, are not explicable from the evidence. Although as a child Mr Morris found his relationship with the deceased to be distant, so did the defendants. As adults, the defendants were able to forge a warm and loving relationship with the deceased. Mr Morris was unable to do so and blamed the deceased for that.
The deceased gave Mr Morris a good start in life. There is contradictory evidence concerning the financial accommodation provided by the deceased to Mr Morris in Mr Morris’ early years. As stated, I accept the evidence of the defendants on these issues. Mr Morris was not dependent on nor was he receiving any financial support from the deceased at the date of the death of the deceased.
The relationship between the deceased and Mr Morris was not close and loving, and for many years of the deceased’s life, was virtually non-existent. When questioned about cl 13(b) of the deceased’s will, where the deceased referred to the behaviour of Mr Morris, Mr Morris said that he had no idea what the deceased was referring to. Considering the evidence of Mr Morris’ itinerant lifestyle, and his lack of contact with the deceased, particularly for the last 10 years of the deceased’s life, I consider that Mr Morris possessed a remarkable lack of insight into his own behaviour.
In respect of any communications between the deceased and Mr Morris, where there is contradictory evidence, I accept the evidence of the defendants and Mrs Morris. I accept that the relationship between the deceased and Mr Morris was on terms dictated by Mr Morris, and that he chose to dismiss the deceased from his life. No reconciliation occurred prior to the death of the deceased. The deceased has taken that behaviour into account in the provisions of his will, and in determining how he should accommodate the competing claims on his bounty.
Mr Morris has withheld his love and support from the deceased, even knowing that the deceased had been diagnosed with cancer. In my view, his behaviour can be characterised as callous and, as a consequence, it is explicable that the deceased left him only a small legacy on his death. The distance between father and son was more than mere misbehaviour, disharmony or disappointment’,[35] but rather was such as to be no relationship at all. In my view, I see no reason for the Court to interfere with the deceased’s freedom of testation and I dismiss Mr Morris’ application.
[35]cf. McKenzie v Topp [2004] VSC 90 (30 March 2004) [45] (Nettle J); Kleinig v Neal [No 2] [1981] 2 NSWLR 532, 540 (Holland J); Herszlikowicz v Czarny [2005] VSC 354 (8 September 2005) [124] (Hargrave J).
The Application of the Second Plaintiff
In respect of the application by the second plaintiff, the authorities are clear as to the moral obligation on a grandparent to provide in his or her will for a grandchild. The obligation for provision primarily rests with the child’s parents. In the circumstances of this proceeding, there is no basis for varying that position.
The deceased had no relationship with the second plaintiff, indeed, he did not ever meet her. The deceased did not know she was suffering from any disability or condition. The evidence of her disabilities and conditions is not reliable in any event and not substantiated by medical evidence or appropriate documentary evidence.
Accordingly, I dismiss the application of the second plaintiff.
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