Pola, Leoni Wendy v Cuming, Ian David
[2009] VCC 1766
•23 December 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
FAMILY PROPERTY DIVISION
Case No. CI-08-01307
IN THE MATTER of the Will and Estate of EDWARD BAXTER (Deceased)
IN THE MATTER of an application pursuant to s.91 of the Administration and Probate Act 1958
BETWEEN:
| LEONIE WENDY POLA | Plaintiff |
| v | |
| IAN DAVID CUMING | |
| (who is sued as Executor of the Estate of EDWARD BAXTER (deceased)) | Defendant |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 and 24 November 2009 |
| DATE OF JUDGMENT: | 23 December 2009 |
| CASE MAY BE CITED AS: | Pola, Leoni Wendy v Cuming, Ian David |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1766 |
REASONS FOR JUDGMENT
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Catchwords: Strong domestic relationship over thirteen years – contribution to deceased’s welfare – deceased had responsibility to provide for plaintiff – plaintiff with very limited financial resources and suffering dementia – inadequate provision made for plaintiff – order that provision be made – Gillies v Executors of the Will of Geoffrey George Sitch (decd) [2005] VSC 308; Grey v Harrison [1997] 2 VR 359; Blore v Lang (1960) 104 CLR 124.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Isles | Judge & Papaleo |
| For the Defendant | Mr W F Gillies | David Gibbs & Associates |
| HIS HONOUR: |
1 By Originating Motion of the 4th day of April 2008, the Administrator, F T L Judge & Papaleo Pty Ltd, appointed by the Victorian Civil & Administrative Tribunal by Order of the 26th June 2006, applied for Orders pursuant to Section 91 of the Administration and Probate Act 1958 (“the Act”), for proper maintenance and support for the plaintiff out of the estate of Edward Baxter, deceased.
2 There was an Affidavit in Support sworn by Mr Warnakulasuriya of the 10th day of December 2007, which ultimately became Exhibit A at the trial.
3 On the 19th March of this year, the plaintiff served upon the defendant a Notice to Admit, relevant essentially to Exhibit A, and in particular to all of the exhibits therein.
4 As a preliminary issue, I determined that the defendant should have leave, despite not serving a Notice of Dispute in regard to such Notice to Admit, to withdraw any imputed admissions which may have been ascribed to him by dint of such failure. Hence, although such affidavit could be tendered as evidence, I ruled that the defendant could cross-examine each of such proponents, in particular as to the alleged matters of hearsay.
5 The case proceeded with the plaintiff calling Dominique Skirving, the daughter of the plaintiff, who tendered an affidavit sworn by her on the 7th day of April 2009. Ms Skirving confirmed the statement made by her at page 44 of the Joint Court Book (“JCB”); the plaintiff’s son, Morgan Skirving, who confirmed his statement at page 52 of the JCB and was cross-examined thereon; the plaintiff’s other daughter, Janine Skirving, who confirmed her statement at page 54 of the JCB and was cross-examined thereon.
6 Tendered without objection was a card addressed to the plaintiff by the deceased, Exhibit C-2, which bears the date 7 September 1994; Exhibit C-3, a brochure with a message to the plaintiff signed by the deceased; and Exhibit C-4, a letter from the plaintiff to the deceased dated the 24th day of September 1997.
7 In addition, the Statement of Assets agreed by both parties was tendered as Exhibit B.
8 Ms Gina Robinson was called, and tendered as Exhibit D was an Assessment of Needs Report prepared by Ms Robinson, located at page 96 of the JCB.
9 In addition, Exhibit E was tendered, which was a hand-written list of items removed from the home of the deceased and his alleged partner in Spring Street, Hastings, on the 11th day of June 2005, and finally, Exhibit F, being calculations as to the needs of the plaintiff.
10 The defendant called Mr Cuming, the executor, and his former partner, Ms Lynne Alexandra, and Ms Denise Osmond, the director of Shoreham House where the plaintiff resides. Their affidavits were respectively tendered as Exhibits 1, 2 and 3, and each of the witnesses was subjected to cross- examination.
11 Essentially, the two issues in this matter were as follows:
(1) What was the relationship between the parties? (2) If, pursuant to Section 91(4)(e) to (p) of the Act, the deceased did have responsibility to make provision for the plaintiff, then again, given the matters set out in Section 91(4)(e) to (p), did the actual testamentary result make adequate provision? 12 In making this determination, I take into account the matters of law which both counsel submitted to me, and in particular the principles set out by Gillard J, as he then was, in the case of Gillies v Executors of the Will of Geoffrey George Sitch (decd) [2005] VSC 308. I accept the analysis made by His Honour as one which is of much assistance in these applications. In particular, I take into account the principles set out in the various authorities referred to in paragraphs 20 through to 42 of the written submission of Mr Isles and the matters submitted in regards thereto by Mr Gillies.
What was the Relationship? - Section 91(4)(e)
13 It would appear the facts disclose as follows:
(i) The parties met in 1990; (ii)
In 1994, the parties began a relationship. The plaintiff was living at 151 Wendy Avenue in Mt Eliza with her son, Morgan, and the deceased used to visit her and share her bed at that premises. At the time the plaintiff also used to travel to his property at Cambridge Street, Tyabb and stay with him there, work on the abatement of blackberries and help him with various political and social issues that he was involved in. Confirmation that this relationship was intimate is contained in Exhibit C-2 (page 81 of the JCB) when the deceased acknowledged in writing on the 7th September 1994, in that the deceased sent to the plaintiff a poem entitled ‘For Gypsy on the Occasion of Erotica dated 7th September 1994’.
(iii)
In the winter of 1995, the deceased sought to become engaged to the plaintiff: see Exhibit C-3 and the words of the deceased written thereon and the evidence in this regard as set out in the affidavit of Dominique Skirving at page 74 of the JCB;
(iv)
The parties bought a unit at number 6, 151 Wendy Avenue in Mt Eliza in 1996. This was a one-room unit and although the affidavit evidence of Mr Morgan Skirving was wrong as to timing, his evidence is that for all of the next year after its purchase he stayed there and in that time his mother lived at the block with the deceased, the block being the deceased’s property at Tyabb. The son, Morgan, said he visited them at those premises once per week;
(v)
In 1999, the plaintiff was divorced. There was no property settlement, as upon separation earlier in her marriage the property was apparently sold and the plaintiff apparently lived on the proceeds (her share);
(vi)
After the property owned by the deceased at Tyabb was burnt down, the deceased paid for Mr Morgan Skirving to go overseas and thereafter the deceased and the plaintiff shifted in and lived at Unit 6, 151 Mt Eliza Avenue, Mt Eliza. This was a one-bedroom unit. They continued to live a life where, according to Dominique Skirving, the deceased described the plaintiff as his “his soul mate” and acted in a loving and intimate way with her;
(vii)
In 2002, the unit in Mt Eliza was sold, the proceeds were shared and both the deceased and the plaintiff moved to Hastings. The evidence is overwhelming that at Hastings they lived together in a two-room unit with only one bed. Throughout this period they lived by dint of combined pensions, and albeit they had their own bank accounts, it would appear both contributed to the upkeep of the property. The evidence from all members of the family was that during that period they were happy together; they were devoted and indeed it was clear that despite the failing health of the plaintiff, the deceased did not want to acknowledge how ill she was and refused to be parted from her. They continued to be intimate in public and the deceased called, and continued to call the plaintiff his “soul mate”. Despite the caring by the deceased, the plaintiff was finally put into hospital in 2005 following an accident, and thereafter she was in respite care;
(viii)
Due to the plaintiff’s debilitative condition, her daughter applied for an administrator to be appointed under the Victorian Civil and Administrative Tribunal legislation;
(ix)
The deceased disagreed strongly as to the need for an administrator and desired very much to have the plaintiff back living with him. He indeed took action in such regard and made an application dated 14 April 2005 for himself to be appointed the guardian of the plaintiff. I find this document to be very significant. In such document, Exhibit DASW-5 to Exhibit 1, at page 31 of the JCB, the deceased described himself as “partner” in an answer to Question 2. The suggestion in evidence from Ms Alexandra that he was reluctant to so describe himself I find to be totally ingenuous and not credible. Such evidence of Ms Alexandra goes against all of the evidence before me, in particular, the evidence of the defendant, the executor and the former partner of Ms Alexandra, Mr Cuming. Such evidence gravely reflects upon the credibility of Ms Alexandra;
(x)
Further, in the written application at page 32 of the JCB in answer to Question 6, the deceased identified himself as the primary carer, and at JCB page 36, in explaining by way of an attached sheet, the reason for his application, he suggested that the plaintiff’s bests interests would be to “be home with him whereby she could effect recovery as soon as possible”;
(xi)
It is to be noted that at Question 22, the deceased declared that his comments were accurate and true.
14 Significantly, I find, in support of the application by the deceased before the Victorian Civil and Administrative Tribunal, there was lodged a letter attached to the deceased’s application, and located in the JCB at page 38, which is also an exhibit to Exhibit A in the hearing, DASW–6. In this letter, the executor noted the first “spark of love” ignited at a poetry gathering in approximately 1994 and referred thereafter as to the progress of the relationship over the next eleven years. At JCB page 38, in such letter to the public advocate, the executor spoke of the deceased’s role in the plaintiff’s life (whom the deceased called “Gypsy”) as “soul mate and life partner”.
15 At JCB page 39, the executor spoke of the plaintiff’s commitment to the deceased and their life together, and the fact of the deceased’s presence in the plaintiff’s life as being “love personified” and as being “exemplified by his daily attendance over the last six weeks for up to six hours a day”, that being a reference to his attendance to her while she was in care following her accident.
16 Again, significantly, I find, at JCB page 40, the executor stated at that time that it was his “ardent hope that [the deceased] be recognised as [the plaintiff’s] partner as deemed equivalent under the law to husband, and that he therefore be accorded the rights appropriate to his status as next of kin”.
17 The plaintiff’s application was supported, as I have indicated, by the statement of her daughter, Dominique Skirving, at page 44 of the JCB, and the affidavit attesting to the truth of same sworn the 7th day of April 2009, which is Exhibit C, at page 73 of the JCB. Significantly, insofar as the analysis of relationship is concerned, as I have already referred to, Dominique Skirving refers, at Exhibit DJS–2, page 81 of her affidavit, to the occasion in September of 1994 when the poem was delivered to her mother and, further, to the reference at DJS–2A, at page 83, to the offer of engagement. She also exhibits, at DJS–3, a letter from the plaintiff to the deceased dated the 24th day of September 1997 which, upon reading, evidences a very strong and emotional relationship.
18 Significantly, I think there is also support for the plaintiff’s case in the affidavits filed on behalf of the defendant. In Exhibit 1, the affidavit filed by Ms Alexandra on the 28th November 2008 (JCB page 64), she refers, at paragraph 6, to “Ed’s time with Wendy”. And further, at paragraph 8, noted that the deceased:
“… had a close relationship with Wendy, as attested by the level of time
and care he devoted to her needs after she was placed in care. …”
19 One again questions Ms Alexandra’s credibility, for it seems that albeit that she had not in any way questioned the relationship in such affidavit (Exhibit 1), when the defendant, as attested to by him, determined to contest the relationship post legal discussions in April 2009, Ms Alexandra, for the first time in evidence in cross-examination, suggested that the relationship between the deceased and the plaintiff was not a defacto relationship.
20 On this issue of credibility, again it is appropriate to look at Exhibit 3, which is the affidavit of the defendant sworn the 27th day of November 2008. At page 63 of the JCB, at paragraph 8, in answer to the originating Summons and affidavit in support, he noted the deceased’s –
“… consideration for the plaintiff, … or Gypsy, as she was known and I
will call her, was sustained to his dying day. …”
21 And further, at paragraph 9, he said that in his view, the deceased felt:
“…that Gypsy was in safe hands and as well cared for as she could be
given the circumstances. ….”
22 It is significant that at no stage has the defendant questioned the relationship as being other than as detailed in his letter of 2005 which amounted to a defacto relationship. In cross-examination, when this matter was put to him that he, at no time, contested the relationship and only chose to do so after receiving legal advice on the 18th June 2009, the defendant answered that while he did not dispute the affidavit or the fact that the letter at page 38 of the JCB as being correct at the time of its writing, it was necessary for him to conceptualise such letter. The matter was taken no further in re-examination. Further, where there is such apparent inconsistency as to his oral evidence, as against his affidavit and earlier letter, such was again put to him, as was all of the other supporting affidavits and letters in the originating affidavit in support, the defendant indicated that albeit he understood a Notice to Admit had been served, that he did not fully understand its significance and that was the reason why no notice of dispute was served. I find such explanation less than genuine and I have grave reservations as to the defendant’s credibility.
23 I find that the defendant had determined, by the very basis of his affidavit, Exhibit 3, that there was nothing in the allegations lodged in the affidavit supporting the Originating Motion as to the relationship between the deceased and the plaintiff which he could in fact object to. I find that the evidence given by the defendant is less than credible because of its grave inconsistency with his earlier letter addressed to the Victorian Civil and Administrative Tribunal and the affidavit filed in opposition, Exhibit 3.
Conclusion
24 I therefore have no hesitation in concluding, upon all of the evidence, that the deceased and the plaintiff had a domestic relationship, previously referred to as a defacto relationship, from mid-1994 until the deceased’s death in June 2007.
Section 91(4)(f) – any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate
25 I find the deceased had a high moral obligation to the plaintiff owing to their domestic relationship.
26 As to the beneficiary under the Will, there is no doubt that there was a strong friendship between the deceased and the defendant. I accept the defendant’s evidence that upon the deceased taking the view that the plaintiff was appropriately cared for, he had determined to leave to the defendant his property, and indeed all his estate, in order to further the environmental and social ideas that were common to him and the defendant. I accept the defendant’s evidence that the deceased was of the view that the defendant would maintain the deceased’s aims for the major asset of his estate, being the property at Tyabb.
Section 91(4)(g) – size of estate
27 Pursuant to Exhibit F, and as agreed by counsel, the net value of the estate is $366,710.00.
Section 91(4)(h) – the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future
28 The plaintiff has no financial resources whatsoever apart from the receipt of the pension.
29 The beneficiary under the Will, as set out in Exhibit 3 (JCB page 61), has limited income and works as an artist. His income is sporadic and, albeit terminating in 2009, he has currently a research fellowship granted by the Australian Council for the Arts. Albeit my concerns as to the defendant’s credit, I accept his evidence confirming what he detailed in paragraph 6 of Exhibit 3, that the deceased, by his bequest, made a deeply felt gesture to ensure that the defendant had a base for his ongoing life and the community work that they had developed together.
Section 91(4)(i) – any disabilities
30 The plaintiff is gravely disabled and in need of total support.
31 The beneficiary is of apparent good health and there is no suggestion of any physical, mental or intellectual disability.
Section 91(4)(j) – age of applicant
32 The plaintiff was born on the 20th May 1943 and is aged sixty-six.
Section 91(4)(k) – contribution of the applicant
33 I am unable to find evidence of any contribution by the plaintiff to building up of the estate of the deceased, however, it is quite clear from the strength of the domestic relationship that the plaintiff considerably, I find, contributed to the welfare of the deceased. Apart from a joint investment in the flat that was sold and divided equally, each of the parties apparently lived quite frugally on the basis of limited savings from such sale and earlier relationships and essentially maintained their relationship by way of pension payments paid into separate bank accounts, such being necessary in order to maintain single and separate pension cheques. I see nothing in the submission made by Mr Gillies that the receipt of the separate pension cheques or the maintenance of separate bank accounts in any way militates against the status and strength of the relationship.
Section 91(4)(l) – any benefits previously given by the deceased person to any applicant or to any beneficiary
34 There is no evidence before me that either the deceased or the beneficiary received any benefits previously from the deceased.
Section 91(4)(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
35 From the inception of the relationship, I find that both the plaintiff and the deceased made contributions to the running of their joint household and looked after each other as best they could with limited financial means. Within those limitations they carried out their pursuits of enjoyment of art, poetry, travel and the protection of the environment.
Section 91(4)(n) – the liability of any other person to maintain the applicant
36 No other person or persons has a liability or obligation to maintain the plaintiff and she has not entered into any other relationship. She is maintained by her administrator from her pension funds.
Section 91(4)(o) – character and conduct of the applicant or any other person
37 There is nothing that is relevant here. Despite my views as to the credibility of both the defendant and his former partner, I do not make any findings under this heading.
Section 91(4)(p) – any other relevant matter
38 The plaintiff’s counsel maintains that given her condition and the size of the estate, and her needs, she should be entitled to the entire net estate.
39 This aspect requires consideration as to the plaintiff’s potential lifespan. Her condition will not change; indeed it will get worse. She suffers from a grave form of dementia. I reject the submission made by the plaintiff’s counsel that the plaintiff would have twenty one years to live. This may be so based purely upon actuarial assessments of life expectancy, however, upon the medical evidence, I find that the plaintiff will not have a normal life expectancy. I take into account the comments of Dr Heaney as to the adverse effect that dementia can have on life expectancy, and in particular note the report of Dr O’Ryan, at page 143 of the JCB, that the plaintiff has a life expectancy which is quite good in all the circumstances, being approximately seven to eight years at least. Against that, of course, must be balanced, it seems to me, the experience of Ms Osmond, who in her affidavit, Exhibit 2, confirmed the evidence of both daughters that the plaintiff’s condition has recently deteriorated gravely, in particular as to her mobility, her ability to feed herself, the spasticity in her right hand and foot and the reduction in her verbal skills. Ms Osmond was of the view, based upon her extensive experience in actually treating and caring for such gravely ill persons, that the plaintiff’s life expectancy is perhaps three years.
40 I must say I was most assisted by Ms Osmond and Ms Robinson, the respective experts called as to the cost and need of additional care. I found Ms Osmond most straightforward and albeit that she was the proprietor of the aged-care facility currently looking after the plaintiff, there was not one witness who in any way criticised the excellent care which has been given, and continues to be given to the plaintiff. As Ms Robinson said, the whole issue goes to a consideration of quality of life. Ms Osmond stated that, of course, one to one assistance is the best that can be provided, however, in the particular facility the ratio worked upon is one to six residents. There was unanimity that the plaintiff in particular suffers from what is known as the ‘Sundowner Syndrome’ where, between 3.00 pm and 6.00 pm in the afternoon, people suffering the disease suffered by the plaintiff, become particularly agitated. As Ms Osmond said, any additional care would be of assistance to the plaintiff. The assistance of a personal carer for these periods would cost $30 per hour. Ms Osmond thought that three times a week would be sufficient, as against Ms Robinson’s suggestion of every day. There also seemed to be agreement that additional support by way of physiotherapy would be of assistance, with Ms Osmond suggesting that physiotherapy could be increased by a doubling from the current three times in which the plaintiff receives massages per day to an increase to six times per day. Such physiotherapy is provided in-house at a cost of some $36 to $38 per day. Ms Osmond was of the view that perhaps this could be instigated an additional four times per week. There was no real objection expressed by Ms Osmond to additional clothing being provided and a princess chair being provided to individually cater for the plaintiff at a cost of some $3000. The additional clothes suggested at approximately $2000 by Ms Robinson was objected to by Ms Osmond as perhaps excessive.
41 Counsel for the plaintiff tendered Exhibit E, which was an alternate scenario in regard to the matters referred to above. There was no evidence, albeit detailed in these figures, as to whether an allowance pursuant to this application would mean that the pension payment, insofar as payment for care at Shoreham House, would be impacted in any way.
42 I have carefully considered all of the matters required to be considered by Section 91(4) of the Act. It now becomes a question of considering each of the issues to be determined:
Jurisdiction
43 The jurisdictional question is, did the deceased have a responsibility to make adequate provision for the proper maintenance and support of the plaintiff, and, if so, did he make adequate provision?
44 In this regard, I note the references in the submissions of Mr Isles to Grey v Harrison [1997] 2 VR 359, to the importance of maintaining, as best as is possible, the right of a person to dispose of his property as he thinks fit, subject, of course, to its exercise being effected in a principled way, that is to ensure one’s moral duty is effected. I also note in this regard the importance of the Court being vigilant in guarding against a tendency to reform a testator’s will according to what it regards as a proper total distribution of the estate rather than to restrict itself to proper function, ensuring that adequate provision has been made for the proper maintenance and support of an applicant.
45 As I have found, there was a domestic relationship, and I find that a wise and just testator in the position of the deceased on his deathbed would have realised that the plaintiff had made a significant contribution to the deceased’s welfare by way of such relationship. Further, I accept the evidence of Ms Alexandra and the defendant that they had discussed the deceased’s Will with him, and that he was of the view that adequate provision had been made for the plaintiff, in the sense that all her demands could be met by way of the provision of services at Shoreham House under the auspices of the pension.
46 I find however, that such a determination by him, albeit genuine and made after taking the plaintiff’s interests into account, was incorrect and that the deceased failed to realise, as a wise and just testator would have in all the circumstances, that the plaintiff was not adequately cared for and that provision should have been made from his estate for her proper maintenance and support. I find, therefore, that the deceased did have a responsibility to make provision for the plaintiff in his Will for her proper maintenance and support and failed to do so.
Adequate Provision
47 The estate is relatively small. Taking into account the agreed valuations in Exhibit E and the various expenses, the net balance is $366,710.00.
48 I find, taking into account all of the matters under Section 91(4), that a just and wise testator in all the circumstances would have made provision for the plaintiff.
49 Such a provision would have assisted the plaintiff by providing additional equipment, clothing, physiotherapy and additional care as she continued her life in Shoreham House.
50 In arriving at a figure which makes adequate provision out of the estate, given the plaintiff’s needs as of today (see Blore v Lang (1960) 104 CLR 124, 130) I, of course, take into account the relatively small size of the estate and the intent of the testator regarding the beneficiary. I, of course, have closely considered the competing arguments of counsel based upon the arithmetical calculations in Exhibit F. Insofar as Mr Gillies was concerned, and the previously referred to submission by Mr Isles, that the total estate should go to the plaintiff, as I have found, the plaintiff’s needs far outweigh that of the beneficiary and the plaintiff clearly has an unrivalled moral claim against the estate.
51 Taking into account all of the above factors, the determination I must make is as to what sum is appropriate to make adequate provision for the maintenance and support of the plaintiff given her current condition and reduced life expectancy. As I have said, such requires a synthesis of all relevant factors under Section 91(4) and I find, pursuant to Section 91(4)(c), that a just and wise testator would have made provision for the plaintiff in the sum of $275,000.
Conclusion
52 In my opinion, the plaintiff has established that the deceased failed to make adequate provision for the proper maintenance and support of her in his Will, that he did have a responsibility to make provision in her favour and that in the circumstances she should receive a total of $275,000.00.
53 Subject to any submissions by counsel, I propose to make the following Orders:
(1)
Declare that the distribution of the estate of Edward Baxter (deceased) effected by his Will dated the 15th day of June 2005, does not make adequate provision for the proper maintenance and support of the plaintiff, Leonie Wendy Pola.
(2) Order that provision for the plaintiff be made out of the estate of the
deceased.(3) Order as to costs, and I will hear counsel as to the precise orders. (4) Order the costs to the plaintiff of this proceeding be taxed on a solicitor
and client basis and when taxed be paid by the estate.(5) Order that the executor’s costs and expenses of the proceedings be
had and retained out of the estate.(6) Liberty to apply generally.
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