Re Eddison; Kildair v Eddison & Anor
[2022] VSC 251
•25 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2021 02950
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the Will and Estate of DOREEN EDDISON, deceased
| ADAM KILDAIR | Plaintiff |
| v | |
| MARK MACLEAY EDDISON and TINA GAYE EDDISON (who are sued as the Executors of the Will and Estate of Doreen Eddison, deceased) | Defendants |
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JUDICIAL REGISTRAR: | Judicial Registrar Englefield |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2022 |
DATE OF JUDGMENT: | 25 May 2022 |
CASE MAY BE CITED AS: | Re Eddison; Kildair v Eddison & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 251 |
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FAMILY PROVISION – Application by defendants for summary judgment - Whether the plaintiff is an eligible person to make a claim – Meaning of ‘member of the household’ Whether the plaintiff was wholly or partly dependant on the deceased for his proper maintenance and support at the time of the deceased’s death - Summary judgment – Civil Procedure Act 2010 (Vic) ss 62, 63(2)(b) and 64 - Administration and Probate Act 1958 (Vic) ss 90A(1), 90(K), 91(1), 91(2)(a), 91(2)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | U Stanisich | Anthony G Black Lawyers |
| For the Defendants | J K Arthur | Mackinnon Jacobs Lawyers |
TABLE OF CONTENTS
Introduction................................................................................................................................... 1
The Estate....................................................................................................................................... 2
Summary of the Plaintiff’s Evidence.......................................................................................... 2
Overview of Submissions............................................................................................................ 7
Defendants’ Submissions................................................................................................... 7
Membership of the Household............................................................................. 7
Dependency............................................................................................................ 8
Plaintiff’s submissions........................................................................................................ 8
Membership of the household.............................................................................. 8
Dependency............................................................................................................ 9
Summary Judgment Principles................................................................................................... 9
Construction Principles.............................................................................................................. 10
Member of the Household.................................................................................. 11
Dependence........................................................................................................... 15
Concluding Observations.......................................................................................................... 17
JUDICIAL REGISTRAR:
Introduction
This is an application by the defendants for summary dismissal of a family provision claim made under pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’), essentially on the grounds that the plaintiff (‘Adam’)[1] has no real prospect of successfully establishing eligibility to make such a claim or of successfully proving dependency on the deceased, as required by the Act.
[1]For ease of reading, and without intending any disrespect, I will refer to the plaintiff and the deceased by their first names.
The Act restricts applications for a family provision order to ‘eligible persons’ as defined.[2] Adam relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act, which reads:
(k)a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;
[2]Administration and Probate Act 1958 (Vic) (‘Act’) ss 90A; 91(2)(a).
The Court must not make an order for family provision for a person relying on paragraph (k) of the definition of eligible person unless satisfied, among other things, that the person was wholly or partly dependent on the deceased for the person’s proper ‘maintenance and support’ (‘threshold dependency’).[3]
[3]Ibid s 91(2)(b).
Further, for such applicants, the Court must take into account in determining the amount of family provision to be made, if any, among other things:
(a) the degree to which the person was wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death; and
(b) any provision that is ordered must be ‘proportionate’ to that degree of dependency (‘quantum dependency’).[4]
[4]Ibid ss 91(4)(d) and (5)(b).
For the reasons that follow, I dismiss the application for summary judgment.
The Estate
Doreen Anne Eddison died on 10 March 2021, aged 89. Doreen had never married nor had children. The first defendant is the son of a cousin of Doreen. The second defendant is the first defendant’s wife.
Doreen’s estate is valued in the inventory filed with the probate application at $1,308,866.66, including her home in Altona, a suburb of Melbourne. By Doreen’s last Will dated 25 March 2009 (‘Will’),[5] the defendants were appointed as executors and the residue of her estate was left to seven beneficiaries, equally, including each of the defendants. As one beneficiary predeceased, the defendants collectively receive about 32% of residue by the Will. There is one other individual beneficiary and four charitable or community institutional beneficiaries who between take the remaining approximately 68% of the estate by the Will.[6]
[5]Affidavit of Adam Kildair sworn 6 October 2021, Exhibit AK 1(‘Plaintiff’s Affidavit’).
[6]Ibid, Exhibit AK 1.
Summary of the Plaintiff’s Evidence
For the purposes of this application for summary judgment, Adam’s evidence is accepted and taken at its highest.[7]
[7]Defendants’ Outline of Submissions, 11 February 2022 (‘Defendants’ Submissions’), [17]; Veniou v Equity Trustees Ltd [2018] VSC 832, [3]; Dunn v Perpetual Trustee Co Ltd [2021] VSC 755 [17] (‘Dunn’).
Adam is a single man, currently aged 46 years old. His was an unhappy childhood. He lived with his grandparents during the last period of his schooling and has had no contact with either parent since he was a teenager. He left school in 1992 and had only two short stints of employment at fast food restaurants, both terminated due to his ill health. Since then, he survived initially on the Disability Support Pension and thereafter by performing ‘odd jobs’ for people in his neighbourhood.
In or about 1999, Adam met Doreen’s brother, John Eddison. Adam then lived nearby and John was a friendly person who greeted Adam as he passed by and they chatted. After a while, Adam also spoke to Doreen on occasion, as her home was on the block behind John’s home and she often visited her brother. Over time, Doreen began to invite Adam into her garden to talk to him about her plants.
In 2008, Adam was working with a handyman and was asked to assist with a job at John’s house. Doreen then began asking Adam to undertake various ‘odd jobs’ for her. This began with gardening work and progressed to jobs around the house, such as painting, organising the garage and cleaning out cupboards. After a time, Adam started taking Doreen to do her shopping, to doctor’s appointments, to visit friends or wherever she needed to go. Doreen held a driver’s licence, but preferred for Adam to drive her in her car.[8]
[8]Plaintiff’s Affidavit (n 5), [18].
Also in or around 2008, John moved into aged care. Adam and Doreen packed and cleaned up John’s house for sale. Adam joined Doreen visiting John in the following years.
John died in 2011, by which time Adam had a well-established relationship with both John and Doreen. Adam was named in John’s funeral notice.[9] By this time, Doreen and Adam regularly had afternoon tea and sometimes lunch and dinner together. They became close and confided in each other. Doreen helped Adam with his problems, including his depression. They spent many days and evenings together, including playing board games, pottering in the garden, looking through books and watching television together, including watching international cycling races which they loved.
[9]Ibid, [19].
By 2014, Doreen was 82 years old and had many health issues including chronic arthritis, scoliosis, incontinence, high blood pressure and venous leg ulcers. Adam, among other care assistance, changed the bandages on Doreen’s leg ulcers for her three times per day, which helped the ulcers to heal. Adam took Doreen to the hospital a few times and attended all her medical appointments, taking notes for her.[10]
[10]Ibid, [20].
In 2014, Doreen informed Adam that the defendants were encouraging her to move into a nursing home or to live with them, but she was against this. Doreen did not want to move and wanted to remain in her home where she was surrounded by her friends.[11] Adam suggested to Doreen that a possible solution may be for him to move into her home to assist her.
[11]Ibid, [21].
A few months later, Doreen decided that she wanted Adam to move in with her. Adam was happy to do this, as he had grown very close to Doreen and ‘loved’ her.[12]
[12]Ibid, [22].
On 7 August 2014, Adam moved into Doreen’s home. At this time, Adam approximately 39 years old. At that time, Adam had no money, no assets and received no government benefits. As Adam puts it, ‘[A]s a result we agreed that [Doreen] would set aside money for the work [Adam] was doing and to enable [him] to get some savings together so that in the event of [Doreen’s] passing then [he] would have some money set aside to fall back on.’[13] From time to time between 2014 and 2016, Doreen put money in an envelope, wrote Adam’s name on the envelope and placed it in the safe. The money did not reflect the work Adam did, but were ‘random’ payments, which ended up totalling around $10,000, although Doreen took out $2,000 without the knowledge of Adam at some later point.[14] Adam performed all household chores, including cleaning, the preparation of many of the meals, cooking and washing, in addition to the assistance he was already providing. Adam offered to pay rent and bills but Doreen refused this offer. Adam did not ask for pay, but says that because Doreen paid for ‘everything’ he did not need money.[15] He says ‘Doreen provided and paid for everything for me and in return I did everything for Doreen’.[16]
[13]Ibid, [23].
[14]Ibid, [24].
[15]Ibid, [24].
[16]Ibid, [39].
Over time, Doreen became more dependent on Adam for assistance and support, with Adam being on hand 24 hours a day, seven days a week.[17] Doreen also provided Adam with emotional and mental support, as Adam says that she was the only person in his life.[18] After Adam moved in to Doreen’s home, they spent Christmas Day, birthdays and Easter at home, just the two of them. Doreen’s mobility improved as a result of Adam’s care after he had moved in to live with her.
[17]Ibid, [25].
[18]Ibid, [25].
In 2016, Doreen raised the prospect of leaving her house to Adam in her Will, so that he had somewhere to live.[19] Adam declined. Doreen continued to raise the subject of her Will. On one occasion, Adam learnt that Doreen attended the Salvation Army in Altona to get information about getting a will done.[20] Adam did not take active steps to assist Doreen to update her Will, as the topic made him uncomfortable and awkward, and he did not want to influence her in the making of her Will.[21]
[19]Ibid, [26].
[20]Ibid, [26].
[21]Ibid, [26].
From early 2020 and into 2021, Doreen’s health deteriorated and she told Adam she may not get an opportunity to update her Will through the Salvation Army. Doreen restated her wish to leave her house to Adam and said she had left notes about her Will in her safe.[22] Doreen apologised for not being able to update her Will and expressed concern that the whole situation was a mess. Adam said that she had nothing to apologise for.
[22]Ibid, [27].
Three undated notes are exhibited to Adam’s affidavit. One of these notes states:
Adam is to receive this house, when I die, as well as money in safe and $100,000 cash.
Doreen Eddison
I can’t get enough energy to dress & renew my Will.[23]
[23]Ibid, [28] and Exhibit AK-5.
Adam told Doreen that if leaving him her house was what Doreen wanted, he did not want her to put away any more money for him, and no further funds were placed in the safe for him after 2016.[24]
[24]Ibid, [31].
In his second affidavit, Adam clarifies that he continued to support and care for Doreen right up until the date of her death on 10 March 2021.[25]
[25]Further Affidavit of Adam Kildair sworn 21 December 2021, [2].
Two longstanding friends of Doreen provided affidavits which confirm Adam’s evidence, including the cohabitation and the quality of the personal care provided by Adam.[26] One friend, Kathleen Meddings, was told by Doreen that Doreen intended to update her Will to leave her home to Adam.[27] The other friend, Lynette Johnson, had a number of conversations where Doreen said she wanted Adam looked after and to have a home of his own, but does not recall Doreen saying that Doreen wanted to update her Will.[28] Both witnesses had a close friendship with Doreen well before Adam moved in with Doreen.
[26]Affidavit of Kathleen Meddings sworn on 11 October 2021 (‘Meddings’ Affidavit’); Affidavit of Lynette Johnstone sworn 22 October 2021 (‘Johnstone’s Affidavit’).
[27]Meddings’ Affidavit (n 26), [9].
[28]Johnstone’s Affidavit (n 26), [7].
Adam suffers from ‘stress’, depression, anxiety, moderate obsessive compulsive disorder, as well as recurring pneumothorax and skin cancers, which he fears may develop into emphysema and melanoma respectively.[29]
[29]Plaintiff’s Affidavit (n 5), [32].
Adam at some point in his life felt overwhelmed and went ‘off the grid.’[30] For a period of his life, he received Disability Support Pension, but currently he does not receive any government benefits, has no Medicare card and no bank account. Doreen was aware of this disengagement, offering to pay for medical assistance and to get him back ‘into the system’.[31] In one note left regarding testamentary intentions, among a list of other people and potential gifts, Doreen writes ’Unit and money to Adam when he gets an identity’.[32]
[30]Ibid, [33].
[31]Ibid, [34].
[32]Ibid, [29] and Exhibit AK-4.
Adam says he has not seen a doctor for 20 or 25 years, but declined Doreen’s offer to pay for his medical needs due to fear of ‘bad news’ that could precipitate a deterioration in his mental state, rendering him incapable of providing care to Doreen.[33] Although at some time in the past he was prescribed medication for anxiety and depression, it did not ‘agree’ with him and he discontinued the medication. In the years Adam lived with Doreen, he felt at peace and at ease.
[33]Ibid, [34].
Adam says he has survived the greater part of his adulthood by living in shared accommodation with others and doing odd jobs that became available.[34] His only assets are clothing, some personal belongings and ‘savings’ of $4,000.00.[35]
[34]Ibid, [38].
[35]Ibid, [40].
Overview of Submissions
Defendants’ Submissions
Membership of the Household
The defendants rely on the construction of membership of a household in Re Meuleman; Quminakelo v Amidzic,[36] (‘Meuleman’) to argue this concept requires more than bare cohabitation. A household is formed by persons who are cohabiting where there is relationship of bonded closeness, with continuity and permanence, features of mutual support or, in other words, a family‑like relationship. The defendants say the cohabitation in this case had an underpinning of expedience.[37] Therefore, they submit that the relationship was one of boarder/landlady or master/servant, which falls outside the concept of membership of a household as discussed in Meuleman and, as a result, Adam’s claim has no prospect of success. To support this submission, the defendants point to Adam offering to pay rent, Doreen ‘paying’ for work by setting aside money and Doreen’s need for a live-in carer to avoid moving into aged care.[38] In addition, Adam’s evidence includes reference to him providing care to Doreen ‘in return for’ payments (between 2014 and 2016) and ‘in return for’ lodgings in her home thereafter. In oral submissions, the ‘quid pro quo’ nature of an exchange of care and domestic services in return for living expenses and free accommodation was emphasised.[39]
Dependency
[36][2020] VSC 376, especially [38]-[41].
[37]Defendant’s Submissions (n 7), [27].
[38]Ibid, [28].
[39]Transcript of Proceedings (Supreme Court of Victoria, S ECI 2021 02950, Englefield JR, 8 March 2022) 8 [30], 11 [11], 37 [23] (‘Transcript’).
The defendants submit that it was Doreen who was dependant on Adam for the care required to allow her to remain in her own home.[40] The defendants argued that any material benefit that flowed from Doreen to Adam was in the style of remuneration for services provided by him, including the provision of accommodation, food and all household expenses, but particularly the cash sums placed in the safe for him prior to 2016. They urge the conclusion that Adam was an independent boarder who earnt the benefits provided by Doreen, and was not a dependent. Further, any emotional dependency on Doreen or any promise of future benefit from her estate is not within the concept of dependent in the Act and cannot be relied upon to satisfy this aspect of Adam’s claim. Finally, the defendants submitted that s 91 of the Act requires that a plaintiff to prove that they were dependent on a deceased for their ‘proper maintenance and support.’ The defendants submit that level of dependency defined by the words ‘proper maintenance and support’ is more than the lowest possible amount to enable someone to survive.[41] It imports concepts of comfort and the extras of life, beyond the mere necessities, for example, holidays or a new car, none of which were provided to Adam by Doreen.
[40]Defendant’s Submissions (n 7), [39].
[41]Ibid, [39], [40], [45].
Plaintiff’s submissions
Membership of the household
Adam also relies on analysis of this concept in Meuleman to assert that cohabitation is transformed into membership of a household by the formation of close, longstanding, supportive bonds. Adam submits that this strong, enduring bond is demonstrated by the evidence and that the exchange of care for accommodation does not create a ‘business’ relationship.[42] Further, Adam emphasised the entirety of the relationship between him and Doreen which distinguishes their relationship from a boarding or professional relationship. To find for the defendants on the defendants’ characterisation of the relationship between Adam and Doreen would require the Court to impermissibly ignore the ‘vast majority’ of the evidence, without cross‑examination.[43]
Dependency
[42]Plaintiff’s Outline of Submissions in response, 25 February 2022, [15] (‘Plaintiff’s Submissions’).
[43]Ibid, [15-16].
Adam relied on the same authorities on the meaning of dependency as did the defendants to reach the opposite conclusion on the facts. Importantly, Adam conceded that if there is no dependency within the meaning of s 91(5)(b) of the Act the claim must fail. Focus was placed on provision of accommodation, financial support and payment of expenses over the period of seven years, as well as the setting aside of sums of money amounting to $8,000.00. No reliance was placed on ‘emotional dependency’ or promises of provision in the will to establish dependency under s 91 of the Act.
Summary Judgment Principles
Summary judgment is available under s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) where a claim has no real prospect of success. A ‘real prospect’ is more than a ‘fanciful chance.’[44] Power to summarily dismiss should be exercised with caution,[45] but consistently with the Court’s own obligations to give effect to the overarching purposes of the CPA.[46]
[44]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [29], [35(a)] (‘Lysaght’).
[45]Ibid, 40 [35(d)].
[46]Ibid, [41] (Neave JA).
Section 64 of the CPA does permit the continuation of a proceeding despite it having no real prospect of success if the Court is satisfied that:
(a) it is in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
Additional caution is necessary when summarily dismissing family provision claims, as the cases usually involve a significant degree of judicial discretion, which generally weighs against summary judgment.[47] Nonetheless, summary judgment must be given in a family provision claim, where it has no real prospect of a favourable exercise of discretion, or is ‘bound to fail’.[48] Summary judgment will be ordered more readily where the issue involves a pure question of law rather than where there is a disputed question of fact.[49] On the other hand, as noted in Meuleman,[50] where a novel issue connected to recent legislative change arises, additional caution may be warranted.
[47]See Warren v McKnight (1996) 40 NSWLR 390, 396 (Hodgson J) (‘Warren’); El-Zaouk v Draybi [2010] NSWSC 1001, [16]-[25], [28], [32] (Hallen AsJ); Wolff v Deavin [2012] NSWSC 1315, [35-8] (Macready AsJ) (‘Wolff’); Jackson v Newns [2011] VSC 32, [11] (Mukhtar AsJ) (‘Jackson’); IMO the Will and Estate of William James Milburn (deceased) [2014] VSC 229 [34] (Zammit AsJ).
[48]Re Rattle; O’Neil; v Equity Trustees Ltd [2019] VSC 565, [58].
[49]Re Demediuk [2016] VSC 587 [18] (McMillan J), citing Mutton v Baker [2014] VSCA 43 [19] (Santamaria JA).
[50]ReMeuleman; Quminakelo v Amidzic [2020] VSC 376 (‘Meuleman’)[25].
Construction Principles
The central issues in dispute are whether or not Adam has a real prospect of establishing that he satisfies para (k) of the Act of the definition of eligible person and that he was dependent on Doreen in satisfaction of threshold dependency and quantum dependency required by s 91 of the Act.
These are first construction questions, relating to amendments made to the Act in 2014.[51] It is only once the relevant sections are construed that the facts can be considered, as illustrated by the competing submissions.
[51]Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), commencing for deaths occurring on or after 1 January 2015.
The relevant principles of construction are set out by Moore J in Dunn v Perpetual Trustee Co Ltd (‘Dunn’),[52] citing the Court of Appeal in Verraty.[53] In essence, I must start with the actual text of the Act and consider it in the light of the context and purpose of the Act. Further, the Interpretation of Legislation Act 1984 (Vic) provides that in interpreting the Act, a construction that promotes its purpose or underlying object must be preferred.[54]
[52][2021] VSC 755 [50].
[53]Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267, [53]-[62].
[54]Interpretation of Legislation Act 1984 (Vic) s 35(a).
Family provision legislation is remedial in character.[55] Its ‘evident purpose’ is to place the assets of the deceased at the ‘disposal of the court’ to provide for ‘the nominated dependants of the deceased’.[56] In Worladge and Anor v Doddridge and Ors, Williams and Fullager JJ said:[57]
The jurisdiction is conferred in very wide terms and no court or judge would be justified in attempting to define it otherwise than in accordance with the ordinary natural meaning of the words in the section.
[55]Holmes v Permanent Trustee Co of New South Wales (1932) 47 CLR 113, 119 (per Rich J, Evatt and McTiernan JJ agreeing).
[56]Easterbrook v Young (1977) 136 CLR 308, 315 (per Barwick CJ, Mason and Murphy JJ); Barns v Barns [2003] HCA 9, [42]-[44] (per Gummow and Hayne JJ).
[57]Worladge and Anor v Doddridge and Ors (1957) 97 CLR 1, 9.
However, while the overall purpose of the Act is remedial, the particular purpose of each provision must be identified.[58] As noted by Derham AsJ in Bail v Scott-McKenzie (‘Bail’),[59] the purpose of the legislative requirement for eligibility as a prerequisite to seek an order for provision is limiting.[60] This principle must be applied in construing the concept of ‘member of the household’ in the Act. In Bail, Derham AsJ cited with approval the following passage from Re Burt:[61]
The answer is to be found as a matter of construction. The fact that the legislation is remedial in character and therefore to be construed beneficially does not call for artificial extensions of the category of persons who are prescribed as eligible for the benefit. The task is to ascertain who has been given the right to apply.
Member of the Household
[58]ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1.
[59][2016] VSC 563. A history of family provision legislation in Victoria is set out in [56]-[82].
[60]Ibid [79].
[61]Re Burt [1988] 1 Qd R 23, 32.
The parties each stated they accepted the construction of ‘member of the household’ set out in Meuleman, but differed on its application. That decision drew on New South Wales authorities, as a ‘member of the household’ is a category of eligible person in the equivalent family provision legislation of that State, albeit with four significant differences to the form of the Act in Victoria.[62] In analysing the concept of ‘a member of the household’ for the purposes of the Act for the first time in Victoria, Meuleman[63] stated as follows:
[62]The differences are discussed in Meuleman (n 50) at [30].
[63]Meuleman (n 50) [38]-[41].
Membership of the Household: Cohabitation
[38]In New South Wales, membership of a household requires cohabitation. Regular visiting without staying overnight is insufficient.[64] However, sharing a rented house or boarding arrangements, while involving cohabitation, are not considered sufficient to create the relationship of ‘member of the household’ between the cohabitants.[65] Therefore, it may be said that the type of cohabitation required to form a ‘household’ for family provision eligibility in New South Wales needs the underpinning of a relationship and cannot come about merely from expedience. The parties need to share not only a residence, but their lives. It is a combination of physical location and emotional attachment or unity. It is a question of fact and degree.[66]
[39]Multiple or split households are permissible. One person may be the member of more than one household simultaneously.[67] For example, a child in a shared custody arrangement or a person with multiple spousal relationships. On the other hand, one household may inhabit two properties.[68]
[40]Although no minimum time is prescribed in either the Victorian Act or the NSW Act, the cohabitation must have sufficient duration, as well as sufficient quality of relationship, to satisfy ‘continuity and permanency’.
[64]Wagstaff v Wagstaff [1991] Supreme Court of New South Wales, Winderyer M, 6 Nov 1991) (‘Wagstaff’).
[65]Kingsland v McIndoe [1989] VR 273.
[66]Doshen v Pedisich [2013] NSWSC 1507.
[67]Wagstaff (n 64); Wolff (n 47); Markulin v Drew (Supreme Court of New South Wales, Young J, 12 August 1993);) (‘Markulin’); Green v Green(1989) 17 NSWLR 343.
[68]Churchill v Roach [2002] EWHC 3230 (Ch) (‘Churchill’).
Membership of the Household: Relationship Factors
[41]The concept of a ‘household’ is an abstract concept.[69] Further, no single ‘relationship factor’ is definitive.[70] Nonetheless, some key features of a relationship that transform people residing together into a ‘household’ for family provision purposes include:
(a)a bond and unity; a concern with and interest in the lives of each other;[71]
(b)a degree of continuity and permanency of mutual living arrangements; [72]
(c)intimate connection with another member of the household;[73]
(d)willingness to permit return, or to return, when faced with vicissitudes, turbulence or failed attempts at living independently;[74]
(e)mutual support, community of resources, voluntary restraint on personal freedom for the sake of the other;[75] and
(f)a bond between them that must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant.[76]
[69]Russell v NSW Trustee and Guardian [2013] NSWSC 370, [38].
[70]Churchill (n 68).
[71]Benney v Jones (Supreme Court of New South Wales, Young J, 13 February 1990) (NSWSC 13 Feb 1990) 22.
[72]Amprimo v Wynn [2015] NSWCA 286 per Meagher [90] and [97] (McColl and Gleeson JJA agreed).
[73]Markulin v Drew (Supreme Court of New South Wales, Young J, 12 August 1993), 46 (‘Markulin’).
[74]Porthouse v Bridge [2007] NSWSC 686.
[75]Churhill (n 68).
[76]Markulin (n 73) 46.
In the context of this application, to evade summary judgment Adam is only required to satisfy the Court that his qualification as an eligible person under the Act is not fanciful or bound to fail. I do not have to determine whether the construction applied in Meuleman will be adopted at trial or whether Adam and Doreen were definitively members of a ‘household’ rather than mere co-residents. All I must consider is whether Adam’s claim is more than ‘fanciful.’
The defendants may be right in submitting that a live-in companion who provides care in exchange for ‘in-kind’ payments in the form of accommodation and all necessities of life is not a ‘member of the household.’ However, that was only one aspect of the relationship between Adam and Doreen. Many of the attributes listed above are present, including providing an apparently deep personal bond, continuity or permanence, intimate connection (especially with each other’s medical needs), concern for each other’s welfare, provision of a sanctuary, mutual support and sharing daily life.
Further, it is important not to over rely on interpretations of different legislation. For example, the New South Wales family provision legislation includes as a category of eligible person being ‘a person with whom the deceased was living in a close personal relationship at the time of death of the deceased’.[77] This is a relationship between two adult persons, other than spouses, who are living together, one of whom provides the other with ‘domestic support and personal care’ but not for ‘fee or reward’ or on behalf of any charitable, government or other person or organisation. Both personal care and domestic support must be shown. A certain quality, duration and regularity of personal care and domestic support is required to satisfy the definition. The existence of this separate category of eligibility removes from the New South Wales concept of ‘member of the household’ any consideration of provision of personal care and domestic support in cases involving persons claiming as members of the household in that State by analogy to the principle generalia specialibus non derogant (special provisions will control general provisions).[78]
[77]Succession Act 2006 (NSW) s 57(1)(f).
[78]See Dennis Charles Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [4.51].
Recognition of the significance to human relationships of provision of domestic support and personal care is also found in the definition of ‘interdependency’ for the purposes of eligibility to receive superannuation death benefits in s 10A of the Superannuation Industry (Supervision) Act 1993 (Cth). The relevant regulations expand on the relevant factors necessary to establish a relationship of interdependency, which includes the following (including margin notes):
… one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.
Examples of care normally provided in a close personal relationship rather than by a friend or flatmate:
1.Significant care provided for the other person when he or she is unwell.
2.Significant care provided for the other person when he or she is suffering emotionally.[79]
[79]Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 1.04AAAA(2)(b).
It is open to a trial judge to consider that the concept of ‘member of the household’ for the purposes of the Act includes relationships where one person who lives with another and provides personal care and domestic support not for ‘fee or reward’, although accommodation and all living expenses may be provided to the caregiver by the care receiver. Providing tender care to a frail person can be profoundly connecting. It often invokes compassion (in the caregiver) and appreciation (in the care receiver), even where provided professionally. The significance of performing deeply personal care such as dressing leg ulcers and dealing with incontinence has been recognised in other jurisdictions in respect to eligibility to benefit from assets left on death. In our own jurisdiction, McKenzie v Topp[80] gives an excellent example of the formation of a son/mother style relationship between an adult stepson and his elderly stepmother, including personal care and domestic support.[81] The relevance and importance of Adam providing personal care and domestic services to Doreen to the Victorian concept of ‘member of the household’ under the Act is untested.
[80][2004] VSC 90.
[81]Ibid, [17]–[20], [31], [37] and [45] (Nettle J).
For these reasons, it cannot be said that Adam’s eligibility as ‘a member of the household’ is so hopeless that it is bound to fail. Therefore, this aspect of the defendants’ application for summary judgment is unsuccessful.
Dependence
In Dunn, Moore J dealt with the meaning of ‘dependent’ in s 91 of the Act, including quantum dependency. His Honour determined in Dunn that ‘dependent’ ought bear its natural and ordinary meaning taking into account the remedial purpose of the Act.[82] Dependent in its natural and ordinary meaning is ‘the condition of depending on something or on someone for what is needed.’[83] In the context of the Act, what is required is evidence that Adam was dependent on Doreen for his ‘proper maintenance and support.’[84] The concept of ‘proper maintenance and support’ in s 91 of the Act is limited to material aid in the lifetime of the deceased, rather than importing any concept of ‘emotional dependency.’[85]
[82]Dunn (n 7) [51].
[83]Ibid, [52].
[84]Ibid.
[85]Ibid, [61], [67].
There can be little doubt that providing free accommodation or paying all living costs over some years where the recipient has no alternative income or accommodation creates at least partial dependency. However, the defendants make three central attacks on this simple proposition. First, that accommodation and living expenses were provided to Adam in exchange for his personal care and domestic support (and prior to 2016, cash sums). Second, that Doreen was dependent on Adam rather than the reverse (seemingly inferring that dependency can only flow one way). And third, relying on the decision in Dunn, that the words ‘proper maintenance and support’ in connection with ‘dependent’ in s 91 of the Act meant that more than the bare necessities of life had to be provided. The defendants argued that some holidays, entertainment or luxuries must be present to bring the ‘dependency’ into the scope of ‘proper maintenance and support’.
The first and second issues raised by the defendants may be aligned. Adam’s counsel responded to the ‘quid pro quo’ argument by essentially submitting that a quality of being a member of a household could be a relationship of ‘give and take.’[86] That is, mutual dependency on each other and mutual provision of support to each other. This brings me to the defendants’ implied second point. In my view, that Doreen may have been dependent on Adam for personal and domestic care does not preclude Adam from being simultaneously dependent on her for his accommodation and living expenses. It is well known that two people may be dependents of each other, for example within a marriage. In any event, whether the relationship was one of ‘reward’ for services or whether it is impermissible to find Adam is dependent on Doreen if at that time Doreen is dependent on him cannot be determined on a summary judgment application, as it requires not just factual determinations following cross‑examination, but difficult questions of the construction of amended legislation.
[86]Transcript (n 39) 32[4].
The third argument, that a level of financial support is required above mere necessities, faces two problems. First, Moore J in Dunn was dealing with a claim where there was no direct financial support at the time of death of the deceased. Dunn required a consideration of the meaning of ‘advancement’ as a sub-set of ‘maintenance and support,’ which is well established to mean more than the basic necessities. His Honour did not exclude free accommodation and payment of living expenses from the concept of dependency for ‘proper maintenance and support’ within the meaning of s 91 of the Act, as that was not argued before him. The second problem with this argument is that what is proper maintenance and support is relative and is determined by reference to a plaintiff’s financial position, the size of the estate and the position of competing claimants as well as the level of support provided during lifetime of a deceased, if relevant.[87] If the basic necessities of life were all Doreen had to give or all Adam needed, it is more than fanciful that a trial judge could find that Adam was in these circumstances dependent on Doreen for his ‘proper maintenance and support.’
[87]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 per Dixon CJ; Goodman v Windeyer (1980) 144 CLR 490, 502 per Gibbs J (Stephen and Mason JJ agreeing).
For these reasons, Adam’s claim to have been dependent on Doreen, during their cohabitation and until the time of her death, is not so hopeless that it is bound to fail. Therefore, this ground of the defendants’ application for summary judgment is also unsuccessful.
Concluding Observations
Moore J in Dunn cautioned against bringing concepts of ‘emotional dependency’ or emotional support into consideration in determining these matters.[88] As a purpose of the amendments to the Act in 2014 was to ‘restore certainty and clarity’ to the Act. His Honour remarked:
Given the universal and necessarily subjective nature of emotional life in all its complexity, this intention will not be furthered by construing the word ‘dependence’ as extending to include emotional dependence and ‘support’ as including emotional support.[89]
I echo that caution not only with respect to dependency but also the concept of member of the household.
[88]Dunn (n 7).
[89]Ibid, [61].
Adam says he ‘loved’ Doreen, among other expressions of emotional connection.[90] However, the claim before the Court requires a determination of fact, was he a member of the household and was he wholly or partly dependent on Doreen at the time of her death? In reaching this determination, it is their actions that are decisive. There is no dispute that they resided together at the relevant times, but the nature of their cohabitation is to be determined by how they acted toward each other. For example, it is Doreen’s actions in providing Adam with free accommodation, paying his living costs, putting away funds for him and speaking to her close friends about his future needs that are determinative, not any emotions that may have been experienced by Adam, including feelings of support, as a result of her actions. Equally, rather than any expressions of love, it is Adam’s objective actions in providing personal care and domestic support to Doreen until the time of her death, allowing her to remain in her home despite her physical needs, that are decisive in this application.
[90]Plaintiff’s Affidavit (n 5), [22].
Finally, while there is some overlap in considering whether Adam and Doreen were members of a household or whether Adam was dependent in the relevant sense on Doreen, it is important to determine first whether the membership of a household exists, as eligibility rests on that fact. Then, similar or the same facts may be considered a second time as part of the consideration of dependency. For example, cohabitation is a feature of being a member of a household and provision of free accommodation is also relevant in certain circumstances to dependency. For further example, provision of material aid is central to a determination of dependency, but might also be taken into account in determining whether or not a ‘household’ exists. Significant care needs to be applied in the preparation of legal submissions which deal clearly and sequentially with each concept. In this regard, I am indebted to counsel who appeared for the parties in this matter.
Orders and Costs
For the reasons above, I dismiss the application for summary judgment. The parties are to forward draft Orders giving effect to these reasons to my Chambers within 14 days. If the parties are unable to agree on the question of costs, a further hearing can be arranged.
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