Potter v Bellifemini - [2019] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
POTTER & ANOR v BELLIFEMINI & ANOR
[2019] SASC 120
Judgment of Judge Bochner a Master of the Supreme Court
16 July 2019
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION
Application pursuant to s 7 of the Inheritance (Family) Provision Act 1972 (SA) for further provision from an estate.
Held: The plaintiffs are not entitled to further provision from the estate of their father.
Inheritance (Family Provision) Act 1972 (SA), referred to.
Smith v Smith [2018] SASC 93; Singer v Berghouse (No 2) (1994) 181 CLR 201; Tiburzi v Butler [2017] SASCFC 89; Carter v Brine [2015] SASC 204; Bowyer v Wood (2007) 99 SASR 190, considered.

POTTER & ANOR v BELLIFEMINI & ANOR
[2019] SASC 120

JUDGE BOCHNER. This is an application pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act) for further provision from an estate, filed by the daughters of the deceased. For the reasons that follow, I have determined that the plaintiffs are not entitled to further provision from the estate of their father. Throughout these reasons, I will refer to the first plaintiff as Vanessa and the second plaintiff as Tonia. This is for ease of reference only and I mean no disrespect by it. I will refer to the first and second defendants jointly as “the defendant”.
Evidence relied on
In reaching my decision, I have considered the following evidence:
·Vanessa’s affidavit filed on 7 May 2019 (P3);
·Tonia’s affidavit filed on 8 May 2019 (P4);
·The defendant’s second affidavit filed on 4 December 2018 (FDN 22);
·The defendant’s third affidavit filed on 3 April 2019 (D7);
·The defendant’s fourth affidavit filed on 4 April 2019 (D6);
·The defendant’s first affidavit filed on 21 May 2018 (D11);
·The oral evidence of Vanessa, Tonia and the defendant.
Background
Norman Bellifemini (the deceased) was born in September 1949, in Port Pirie. He married his first wife in May 1972. He had two children, Tonia, who was born on 7 September 1972, and Vanessa, who was born on 9 October 1973. The deceased and his first wife separated in about 1982, and were divorced in about May 1983. Following the divorce, Vanessa lived with her mother, and Tonia lived mostly with the deceased.
The deceased and the defendant started dating in May 1987. They purchased a property together in Port Pirie in 1989, with the intention that it would become their home. They contributed equally to the deposit. Initially, the defendant lived in the property with her son, while the deceased lived in a rental property with Tonia. During this period, the defendant made all of the mortgage payments on the property. On 8 May 1993, the deceased and the defendant were married, and from this time lived together in the home that they jointly owned. After their marriage, the defendant’s son continued to live with them.
In 1995, the deceased and the defendant sold their property and lived in rented accommodation. They then purchased a vacant block in Port Pirie, with a view to building; however they ultimately moved to Adelaide and sold the block. The defendant moved to Adelaide first, while the deceased waited for a transfer with his employer. From April 2003, the deceased and the defendant lived in rental accommodation in Enfield, Adelaide, and in 2005, they bought the property. This remained their matrimonial home until the death of the deceased. The defendant still lives there.
The Enfield property was purchased with the assistance of a loan from a credit union.
The deceased worked as a cook throughout the marriage. In 2007, he sought to reduce his hours, and at this time, withdrew $123,162.90 from his superannuation to reduce the mortgage over their home. He continued working until November 2008, when he suffered a cardiac arrest. He did not return to paid employment after this time.
In about March 2008, the defendant received an inheritance from her mother’s estate. This money was used to discharge the mortgage over the matrimonial home. In February 2011, the deceased received a lump sum payment of $62,691.37 from his superannuation. This money was used for the joint benefit of the deceased and the defendant.
Following his cardiac arrest, the deceased was unable to drive for six months, and required both physical and emotional support from the defendant. In 2009, he had an operation on his hip, and spent a considerable period of time in hospital. From this time onward, the defendant cared for the deceased as required.
During their marriage, the deceased and the defendant had a number of holidays together, including visiting Europe and the United Kingdom, Tasmania, Sydney, the Great Ocean Road, and various locations around South Australia. In addition, the defendant undertook two trips on her own, the first to Nepal in late 2008, and the second to the United Kingdom in 2015.
Throughout their marriage, the defendant worked as a personal care worker. The only exception to this is the period leading up to the deceased’s death. The defendant resigned from her employment three weeks before he died, so that she could care for him full time. The defendant returned to work after the deceased’s death, and at the time of the hearing in this matter, was working on a casual basis as a personal care worker in aged care.
The deceased died on 19 March 2016.
The Will of the Deceased
The deceased left a will dated 22 November 2006, in relation to which probate was granted to the defendant on 7 July 2017. The affidavit of assets and liabilities which was filed at the time of the application for the grant of probate disclosed a net estate of $68,734.06, which comprised moneys in two accounts with the People’s Choice Credit Union. Since that time, a number of debts have been incurred, including funeral expenses and legal costs. The defendant says that, as at 28 February 2019, the net estate was $57,081.45.
By his will, the deceased gave any moneys from any superannuation or pension fund to Vanessa and Tonia, to be shared by them equally. He gave the balance of his estate to the defendant.
As set out above, the deceased withdrew money from his superannuation account on two occasions the first in 2007, within a year of making his last will, and the second in February 2011, five years before his death. As a result, there were no moneys remaining to be distributed to Vanessa and Tonia. It is these circumstances that have led to their making a claim pursuant to the Act.
The evidence
Vanessa
Vanessa was born in 1973, and at the time of the hearing she was 45 years old. She is married with two children, one of whom (her son) is no longer dependent, although he still lives with her and her husband. Her daughter is in her final year at school and works part time.
Vanessa married her husband, Bruce, in 1996. Bruce is a builder, but he suffers ill health and has a limited earning capacity. Vanessa works as a registered nurse at an aged care facility in Mount Gambier. She earns around $66,000 per year. She has had both hips replaced. She is otherwise in good health.
Vanessa and Bruce own their own home, which is valued at about $250,000. There is an outstanding mortgage, the balance of which is about $125,000. Vanessa has a moderate amount of superannuation; Bruce has recently withdrawn his superannuation, which he will use to reduce the mortgage, and to set up a business as a builder. They own three motor vehicles, with a combined value of about $35,000. They have no other assets of significance.
After her parents’ separation, Vanessa lived with her mother, and for many years, had no contact with the deceased. She re-established contact with him about 20 years ago, and after that time, they saw each other regularly. Their contact was necessarily limited because the deceased lived in Adelaide and Vanessa lives in Mount Gambier; nonetheless, Vanessa and her family frequently visited Adelaide for her children’s sporting commitments, and would frequently visit him during those times.
Vanessa says that she has never had a good relationship with the defendant. It appears that she also has very limited contact with her mother; she says that she has had no contact at all with her mother since 2016, and only very limited contact from about 2009.
Vanessa gave limited oral evidence, with the majority of her evidence being given by way of affidavit. Vanessa’s dislike of the defendant is made clear in her affidavit, with statements such as:
I presume that the deceased left the Port Pirie Hospital because in or about 2002 Cherylyn took it upon herself to move to Adelaide.[1]
and
I am amazed that the deceased had no more than about $60,000 in the Bank, plus a joint share in a house, when he died.[2]
[1] P3 at [23].
[2] P3 at [104].
It is also apparent from the various statements made by Vanessa about the defendant’s travel, and about the cash prize won by the deceased in a competition at a supermarket. It seems that Vanessa seeks to infer that the defendant is a selfish person who thought only of herself and who spent the deceased’s money as her own.
Tonia
Tonia was born in 1972 and at the time of the hearing was 46 years old.
After her parents’ separation, Tonia lived initially with her mother. In about 1984, she became unwell and was hospitalised with anorexia. Following her discharge, she lived with the deceased. After the deceased commenced his relationship with the defendant, Tonia says that her relationship with him deteriorated. He worked long hours and spent much of his spare time with the defendant, leaving Tonia at home by herself. Tonia frankly admits to feeling resentful about the time and effort that the deceased put into renovating the house in which the defendant and her son lived. Tonia says that she commenced a relationship with a man of whom her father did not approve; her relationship with the deceased improved significantly after they split up. Tonia reports never having had a good relationship with the defendant.
Tonia did not complete high school. She currently works part time as a sales assistant at a petrol station. She earns around $26,000 per annum. Tonia has an adult daughter who lives with her. Her daughter is financially independent. Tonia’s health is generally good, although she has some anxiety problems.
Tonia owns a house in Port Pirie, in which she lives. She also owns a house in Mount Gambier and two other houses in Port Pirie. These properties are rented and the rent covers the mortgage. I was not provided with any valuations of any of these properties. Tonia said in evidence that three of the four properties are mortgaged. She has few other assets of value.
Tonia also sought, by inference, to impugn the defendant’s relationship with the deceased, with statements such as:
The deceased would often cook tea when I visited him. Sometimes Cherylyn was there for the meal, and sometimes she was not. I think we were happier if she was not there.[3]
[3] P4 at [27].
She also seeks to suggest that the defendant was mean with money.[4]
[4] See for example P4 at [29] – [31].
The plaintiffs’ submissions
Vanessa and Tonia say that they should receive provision from their father’s estate, pursuant to the Act. Their father clearly intended to leave them a good legacy; they have been denied this as, by the time of his death, he had withdrawn all of his superannuation. It was put to me that, if he “had his time again”, the deceased would have made a different will which ensured that his daughters received something.
It was suggested in submissions that the defendant may have prevailed upon the deceased to use his superannuation to pay off the mortgage over their home, and it was at least inferred that the defendant had somehow been improperly involved in the use of the money won by the deceased in a competition in 2012, four years before his death.
The plaintiffs submitted that each of them met the threshold test, so that the discretion afforded by the Act should be exercised. Tonia works part time, and while she owns three investment properties and owns her own home, she has little income and no security. While Vanessa is a qualified registered nurse, she has suffered an injury and so her future in the work force is less secure that it might be. Her husband also has serious health problems which affect his earning capacity. She has the usual expenses associated with raising children.
They say that the defendant is in far more comfortable circumstances and does not meet the threshold test. She owns her own home, has reasonable superannuation, some savings and a motor vehicle. When she retires, her retirement income will be partly self-funded. The plaintiffs say that I must take into account the assets that existed during the lifetime of the deceased and any inter vivos gifts that he made, in determining whether a testator has fulfilled his moral obligation to all of the potential beneficiaries of his estate. In this regard, they relied on Smith v Smith.[5]
[5] [2018] SASC 93.
The plaintiffs appeared to call into question the care that the defendant provided to the deceased, asking me to take into consideration that she cannot have provided him with full time care for long, and that she was unable to provide him with care while she was travelling.
The plaintiffs invited me to criticise the defendant’s conduct in regard to her compliance with her obligations of disclosure. They put to me that her poor conduct in this regard reflects poorly on her as an executor and as a party in this litigation.
The defendant
At the time of the hearing, the defendant was 64 years old. As set out above, she works on a casual basis as a personal care assistant in a nursing home, having resigned from her permanent employment shortly before the deceased’s death, so that she could care for him. At the time of his death, the defendant and the deceased owned the property in Enfield as joint tenants.
At the time of the hearing, the Enfield property was worth about $365,000 and was unencumbered, although in need of substantial repairs. In addition to the Enfield property, the defendant has savings of around $70,000 spread across a number of bank accounts. She also has superannuation with a value of around $273,721, and no other assets of significant value. She owns a modest motor vehicle. Her income is in the region of $47,000 per year, however, as she is a casual employee, her hours (and consequently her wages) are subject to considerable variation.
Since the deceased’s death, the defendant has been diagnosed with depression and hyperthyroidism, for which she takes regular medication. She also suffers from lower back pain, and wrist and shoulder pain, which she attributes to her many years’ working in the aged care industry, which has involved heavy physical tasks. She hopes to retire in October 2019, when she turns 65. She does not receive any form of government benefit. She lives within her means; to achieve this, she leads a frugal lifestyle.
In her affidavit material, the defendant described her relationship with the deceased as a loving partnership:
Throughout our relationship the deceased and I shared our finances. We shared an exclusive and loving relationship as husband and wife. We planned our futures together, openly discussed our finances and intended to live the rest of our lives together.[6]
[6] D7 at [25].
It is clear that for the first approximately 20 years of their relationship, both the deceased and the defendant worked full time, albeit in fairly low paying employment, or as the defendant put it, “both earning basic incomes”.[7] It is clear that they lived frugally and planned for their retirement.
[7] D7 at [26].
For the last approximately eight years of his life, the deceased did not work. It seems that from that time, he received a modest Centrelink payment each fortnight. He used his superannuation to pay off the mortgage over the matrimonial home and to meet other expenses. During this time, the defendant continued to work, with her wages used to pay the day to day expenses of each of them.
In submissions, the defendant asked me to reject any criticism of the defendant’s disclosure. It was put to me that freedom of testamentary disposition remains, and that the deceased was not in breach of any duty to the plaintiffs by leaving the entirety of his estate to his wife of more than twenty years. While the deceased may have intended his daughters to benefit under his will at the time that he made it, this intention clearly changed; if he had wished them to benefit at the time of his death, he would have changed his will to ensure that they did so. It was brought to my attention that the deceased withdrew the majority of his superannuation less than a year after making his will, and the balance five years before his death. It is impossible to suggest in these circumstances that he would not have been aware that his daughters would no longer benefit under his will.
As to the jurisdictional or threshold test, the defendant put to me that I had little information before me as to the financial position of the plaintiffs, noting that they had presented no evidence as to the value of the properties that they owned, or their level of debt. I was asked to take into consideration the fact that the defendant is at the end of her working life, while the plaintiffs are in the middle of theirs; they have far greater capacity than she to better their financial position over the coming years. All of the plaintiffs and defendant live in modest circumstances, and despite owning her own home and having some superannuation, the defendant’s future lifestyle will remain a frugal one.
It was put to me by the defendant that by leaving the entirety of his estate to his wife of some 23 years, the deceased behaved as a wise and just testator.
Consideration
The principles to be applied when determining a claim pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act) are well established. Section 7 provides:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
As daughters of the deceased, the plaintiffs are entitled to claim the benefit of the Act, pursuant to s 6. A two stage process is required, to determine firstly, whether the plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life, and secondly, if the first question is answered in the affirmative, what provision ought to be made for them out of the estate of the deceased. In Singer v Berghouse (No 2),[8] the Court described it this way:
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". That description means no more than that the court's power to make an order in favour of an applicant under s7 is conditioned upon the court being satisfied of the state of affairs predicated in s9(2)(a).
In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen (Deceased), Allen v Manchester. In that case his Honour said: "The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."[9]
(citations omitted)
[8] (1994) 181 CLR 201.
[9] (1994) 181 CLR 201 at 208 – 209.

Section 7 has more recently been considered by Doyle J in Tiburzi v Butler[10] and by Blue J in Carter v Brine.[11]
[10] [2017] SASCFC 89 at [70] – [74].
[11] [2015] SASC 204 at [591] – [594].
In particular, Blue J explained the principles to be applied in the way:
[591] The question whether by reason of the testator’s testamentary dispositions the claimant has been left without adequate provision for his or her proper maintenance, education or advancement in life is a question of fact involving the exercise of value judgements. The question is to be determined objectively by the Court and not by reference to the subjective knowledge, beliefs or intentions of the testator.
[592] The question is to be determined as at the date of death by reference to the objective facts then existing including prospective future expectations and contingencies foreseeable as at the date of death: it is not appropriate to determine this question retrospectively with the wisdom of hindsight or by reference to the objective facts existing at the date of trial. The Court assesses the position by placing herself in the testator’s position and making its own objective assessment by reference to objectively proved facts and circumstances in existence as explained above as at the date of death.
[593] The words “adequate” and “proper” in the composite phrase “adequate provision for his proper maintenance, education or advancement in life” are both relative. This requires an examination of all relevant circumstances. Factors to be assessed and weighed relative to other factors include but are not limited to:
·    the age, condition, general situation and other factors relating to the claimant;^{- 185}
·    the needs of the claimant and the lifestyle and standard of living to which the claimant has become accustomed;^{- 186}
·    the claimant’s capacity and resources to meet those needs, lifestyle and standard of living;
·    the relationship between the testator and the claimant;
·    the nature, extent and character of the estate;
·    the relationship between the testator and other persons for whom the testator provided or having claims against the estate;
·    other claims against the estate.
(citations removed)
I must first determine the “jurisdictional question”. In doing so, I must take into account:
The applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.[12]
[12] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 210.
These elements are considered as at the date of the deceased’s death.
I will consider each of the plaintiffs in turn.
At the date of the deceased’s death, Vanessa’s financial position was reasonable. She is employed as a registered nurse. Her husband has a modest income. Her children are well on the way to becoming fully independent.
Vanessa and her husband own their own home. I have limited information as to its value. It appears that they have a reasonable amount of equity in the home.
Vanessa was estranged from her father until she was about 19 years old. It appears that this estrangement was the fault of neither Vanessa nor the deceased. For the last twenty years, Vanessa and her father enjoyed a warm, although perhaps not a particularly close, relationship. This was partly caused by the fact that one lived in Mount Gambier and the other lived in Adelaide. In any event, this is not a case where disentitling conduct has been alleged.
Tonia is employed part time on a casual basis. She owns four properties, three of which are subject to a mortgage. She has minimal savings. She has one child who is independent.
It appears that she and the deceased had a period of partial estrangement between about 1997 and 2002; after that time, they resumed a warm relationship. After the deceased moved to Adelaide in 2003, their relationship remained warm but not close, again largely because of the physical distance between them.
Both plaintiffs are in their mid 40’s. The defendant is in her mid 60’s.
The defendant is 64. She has worked since the early 1980’s as a personal care assistant. She owns her own home, has superannuation of about $275,000 and some savings. She was married to the deceased for 23 years and their relationship spanned nearly 30 years.
I make no comment on the credibility of any of the witnesses, despite the fact that the evidence of the plaintiffs was very different in many respects to that of the defendant. I have no doubt that the plaintiffs were telling the truth as they saw it. Nonetheless, I reject the inferences that they sought to make as to the conduct of the defendant. I prefer the evidence of the defendant as to her relationship with the deceased, over that of the plaintiffs. I accept that she and the deceased had a loving relationship, and that any choices that the deceased made about his superannuation, his winnings and so on, were made by him of his free will, in consultation with his wife.
I turn to two of the submissions made to me by the plaintiffs. The first is that the defendant would not meet the threshold. This submission is erroneous. The defendant does not have to meet the threshold test; it is the plaintiffs who must do so.
The second submission relates to the relevance of my decision in Smith v Smith. That decision has no relevance to the circumstances before me. There is no evidence in this matter that there has been a failure by the defendant to disclose any inter vivos gifts or transactions made by the deceased, or that she has otherwise not disclosed all of her sources of income.
Taking all of these things into consideration, I do not consider that the plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life. I am of the view that any moral claim that the deceased had was met by ensuring the ongoing maintenance of his wife. I rely on the words of Debelle J in Bowyer v Wood,[13] where he said:
A wise and just [testator] will have regard to what Dixon CJ in Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 510 called “the natural claim upon her testamentary bounty”.[14]
[13] (2007) 99 SASR 190.
[14] (2007) 99 SASR 190 at [45].
In this matter, it can be inferred that the deceased had regard to the “natural claims upon [his] testamentary bounty”. His estate is small; it cannot provide for all of those for whom he might have wished to provide. His wife is near the end of her working life; his daughters are in the middle of theirs. His wife has little opportunity to improve her financial circumstances; his daughters have many years in which to amass superannuation and savings, and to otherwise improve their financial lot in life. His wife was the main wage earner for the last eight years of his life and provided him with care; his daughters did not provide him with any exceptional or special service. While I accept that this is through no fault of theirs, it remains the fact.
In the circumstances, the plaintiffs’ claim is dismissed.