Re Rattle; O'Neil; v Equity Trustees Ltd
[2019] VSC 565
•23 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S ECI 2018 00365
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the Will and Estate of STUART CHARLES RATTLE, deceased
BETWEEN:
| NORA CLARE O'NEILL (a disabled person who sues by her litigation guardian ANNE MARY O'NEILL) | Plaintiff |
| v | |
| EQUITY TRUSTEES LIMITED (who is sued in its capacity as Executor of the Estate of Stuart Charles Rattle) | Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2019 |
DATE OF JUDGMENT: | 23 August 2019 |
CASE MAY BE CITED AS: | Re Rattle; O'Neill v Equity Trustees Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 565 |
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PRACTICE AND PROCEDURE — Application by the defendant for summary judgment — Plaintiff with litigation guardian — Application granted – Originating Motion bound to fail – No real prospect of success — Civil Procedure Act 2010, s 63 — Supreme Court (General Civil Procedure) Rules 2015, rr 22.16, 23.01, and 23.02.
TESTATOR FAMILY MAINTENANCE — Plaintiff sister of the former de facto partner of the deceased — Plaintiff seeks orders for provision for her proper maintenance and support from the deceased’s estate — Plaintiff and deceased never met — Deceased had no responsibility to make provision for the plaintiff’s maintenance and support from his estate —Administration and Probate Act 1958, Part IV.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R C Wells | Maddens Lawyers |
| For the Defendant | Ms E L Coates | Aitken Partners Pty Ltd |
HIS HONOUR:
Introduction & background
On 9 December 2013, Michael Anthony O’Neill (Michael) murdered his domestic partner of some 15 years, Stuart Charles Rattle (the deceased). Michael is serving a sentence of 18 years’ imprisonment for the murder.[1]
[1]Director of Public Prosecutions v Michael Anthony O’Neill [2015] VSC 25.
The deceased had made an informal will dated 25 August 2006 (the will). The will was admitted to probate on 16 May 2018.
Under the will, the deceased appointed Michael as executor, with Equity Trustees Ltd, the defendant in this proceeding, the substitute executor.
Although the will bequeathed the entirety of the deceased’s estate to Michael, he is unable to benefit from the deceased’s estate by operation of the forfeiture rule.[2]
[2]As determined by McMillan J in Re Rattle [2018] VSC 249.
The will also includes a substitute residuary clause which provides that, in the event that Michael fails to survive the deceased by 30 days, his estate would pass in equal shares to his two named sisters, his two named godsons and Nora Clare O’Neill, in the event that they survived him and attained the age of 21 years.
Nora O’Neill is a person under a disability and the sister of Michael. She is the plaintiff in this proceeding. Given the long term relationship between Michael and the deceased, in this proceeding the plaintiff was accurately described as the deceased’s ‘de facto sister-in-law’.
In a previous proceeding in this Court, McMillan J determined that, on the proper construction of the will, the substitute residuary clause failed.[3] As a result, the deceased’s estate falls to be distributed on an intestacy.[4]
[3]Re Rattle (No 2); Equity Trustees Ltd v Halstead [2018] VSC 700.
[4]Ibid [3].
The deceased was survived by both his parents, Jill Mary Rattle and Kenneth Charles Rattle. Kenneth Rattle died on 22 August 2014. The deceased and Michael did not have any children.
On 17 July 2018, the plaintiff, by her litigation guardian,[5] commenced this proceeding pursuant to Part IV of the Administration and Probate Act 1958 (the Act). She seeks an order that provision for her proper maintenance and support be made out of the deceased’s estate. As at March 2019, the deceased’s estate was valued at approximately $1,682,857.70.
[5]The plaintiff’s litigation guardian is her mother, Anne Mary O’Neill.
By summons filed on 29 April 2019, the defendant seeks summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 and r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and an order that the plaintiff’s originating motion be struck out on the grounds that it has no real prospect of success.
In support of its summons, the defendant relies on matters deposed to in the affidavit of Anne Mary O’Neill sworn on 14 March 2019 filed in support of the plaintiff’s originating motion. The defendant contends that, taking the plaintiff’s case at its highest, her claim should be summarily dismissed. There are no factual issues in dispute on the application for summary dismissal.
Facts
The plaintiff is 57 years of age. She is autistic and has a ‘moderate’ intellectual disability[6] which she has had since she was born.
[6]As described in the Affidavit of Anne Mary O’Neill sworn 14 March 2019, [10].
The plaintiff is the eldest of five children. Michael is the third youngest son. The plaintiff’s other siblings live interstate or overseas and have families of their own. The plaintiff was and is particularly close with Michael.
The plaintiff lives in a unit at the rear of her parents’ property in Terang. Her mother and father, with whom she has lived her whole life, are aged pensioners, being 81 and 85 years of age respectively. They assist the plaintiff both personally and financially.
The plaintiff receives a disability support pension and pays rent to the Ministry of Housing for her unit, as well as paying for her own household expenses. She is registered for the National Disability Insurance Scheme and has approximately $37,000 in the bank.
The property in Terang where the plaintiff and her parents live is valued at approximately $350,000. The plaintiff’s parents have cash savings of $250,000.
Michael will be the plaintiff’s principal carer after he is released from prison in about 2026. The plaintiff will need to go into a hostel if her parents are unable to look after her during the remaining period of Michael’s incarceration. This will likely cost approximately 85% of the disability pension which she receives.
A matter of particular significance in relation to the present application is the fact that neither the plaintiff (nor her mother) ever met the deceased. Michael never disclosed to his parents that he was in a committed same sex relationship with the deceased, although the plaintiff’s mother gave evidence that she well knew of the relationship.
Summary judgment principles
The principles relevant to applications for summary judgment were not in dispute.
In accordance with s 63(1) of the Civil Procedure Act 2010, the Court has power to give summary judgment in any civil proceeding if satisfied that a claim has ‘no real prospect of success’. A claim will meet this description if it has a ‘fanciful’, as opposed to a ‘real’ prospect of success.[7] As observed by McMillan J in Re Moschoudis,[8] in the application of this test, the concept has been ‘said to apply to claims that are “fanciful”[9], “futile”[10] or “unarguable”[11]’.[12] The power to terminate proceedings summarily must be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried.[13]
[7]See Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158, [29]; Utility Services Corporation Ltd v SPI Electricity Pty Ltd (2012) 35 VR 628.
[8][2016] VSC 139, [8].
[9]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29].
[10]Utility Services Corporation Ltd v SPI Electricity Pty Ltd (2012) 35 VR 628, 641 [48] (Dixon AJA).
[11]Ibid 629 [1] (Bongiorno JA), 630 [8] (Beach AJA).
[12]Re Moschoudis [2016] VSC 139, [8].
[13]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [35] (Warren CJ and Nettle JA).
Pursuant to s 64 of the Civil Procedure Act 2010, even if the Court is satisfied that a civil proceeding has no real prospect of success, it may order that a proceeding proceed to trial if it is not in the interests of justice to summarily dismiss the proceeding or the dispute is of such a nature that only a full hearing on the merits is appropriate.
In the context of proceedings under Part IV of the Act, counsel for the plaintiff relied on the following statement by Zammit AsJ (as she then was) in IMO the Will and Estate of William James Milburn (deceased):[14]
When considering an application for summary judgment in a Part IV claim, the Court must be particularly cautious, in that Part IV claims tend to be of a type which may fall within s 64 of the CPA, as not being suitable for summary determination. That is because claims under Part IV of the Act involve the Court’s evaluation of the testator’s moral duty and the exercise of a discretion. As Mukhtar AsJ noted in Jackson v Newn (sic),[15] the exercise of such a discretion involves ‘some value judgment’ and means ordinarily family claims are best left to the trial to determine their sustainability. Mukhtar AsJ noted that summary disposal in this type of case is rare because facts in family claims are invariably in dispute to some appreciable degree, and a fair bit is, at large, in the field of discretion.
[14][2014] VSC 229, [34]. Reliance was also placed on similar observations by Zammit AsJ (as she then was) in IMO the will and estate of Angelo Marotta (deceased) [2011] VSC 324, [40]-[41].
[15][2011] VSC 32, [11].
Part IV of the Act and applicable principles
Part IV of the Act governs the Court’s power to make orders providing for the maintenance and support of an applicant from the estate of a deceased person.
As at the date of the deceased’s death, s 91 of the Act was in the following terms:[16]
[16]The terms of s 91 at the relevant time did not include the amendments made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 which commenced operation on 1 January 2015.
91 Power of the Court to make maintenance order
(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
(2)The Court must not make an order under subsection (1) in favour of a person unless—
(a) that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.
(3)The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by—
(a) his or her will (if any); or
(b) the operation of the provisions of Part I, Division 6; or
(c) both the will and the operation of the provisions—
does not make adequate provision for the proper maintenance and support of the person.
(4) The Court in determining—
(a)whether or not the deceased had responsibility to make provision for a person; and
(b)whether or not the distribution of the estate of the deceased person as effected by—
(i) the deceased's will; or
(ii) the operation of the provisions of Part I, Division 6; or
(iii) both the will and the operation of the provisions—
makes adequate provision for the proper maintenance and support of the person; and
(c)the amount of provision (if any) which the Court may order for the person; and
(d)any other matter related to an application for an order under subsection (1)—
must have regard to—
(e)any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k)any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary;
(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;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant.
It is well established that s 91(1) of the Act establishes as a jurisdictional condition for the making of an order for provision that the claimant be a person for whom the deceased had a responsibility to make adequate provision for their proper maintenance and support. As stated by Harper J in Schmidt v Watkins in the context of considering the amendments to the Act made in 1997 which resulted in s 91 in its terms applicable to this proceeding (emphasis added):[17]
[17]Schmidt v Watkins [2002] VSC 273, [8]-[9].
It seems clear that, as a result of the amendments effected to the Administration and Probate Act 1958 by the Wills Act 1997, the two-stage process now has a third; one that must be traversed if the deceased died on or after 20 July 1998. The court must in those cases, and as its initial focus of inquiry, decide whether or not the claimant falls within that class of person for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support.[18] Since the court has no jurisdiction to make an order in favour of a person for whom the deceased did not have this responsibility, the court's initial focus also falls within what is for these purposes the definition of a "jurisdictional question". It nevertheless seems to me that the touchstone remains that of the wise and just testator; and the court must respect freedom of testation except in those cases where that freedom has been abused by a failure by the deceased to fulfil his or her responsibility to such a claimant.
Clearly enough, the deficiency which the amendments were designed to remove was a lacuna in the extent of the legislation's previous reach. According to modern notions of what is right, some may properly look to others for maintenance and support even though there is no tie of blood or marriage between them. While, therefore, all citizens have a moral duty to make adequate provision out of their estate for such of their surviving spouse or children who would otherwise be left without proper maintenance and support, that moral duty is not necessarily restricted to those family members. Others (including those who were not related) may fall within its reach. Until the passage of the Wills Act 1997, Victorians in such a position could not look for assistance to the legislative provisions dealing with testator's family maintenance. On the other hand, one’s moral duty is by definition a limited duty. Accordingly, the remedy was not a wholesale enlargement of the field of prospective claimants. Nor was it left to the courts in the exercise of an unprincipled discretion to decide whether a particular claimant was or was not a person for whom the deceased had the requisite responsibility. Rather, the remedy was the inclusion into the class of those claimants of persons who, although not numbered among the deceased's immediate family, nevertheless had "a moral claim to the deceased's estate".[19]
After referring to paragraphs (e)-(p) of s 91(4), his Honour stated (emphasis added):[20]
When the above list is read in the light of the Second Reading Speech, it is in my opinion clear that the amendments effected by the Wills Act were seen by Parliament as part of a continuum rather than as a complete break from the past. By referring to the unamended provisions of PtIV as “quite restrictive” and as “excluding the ability of other persons who may have a moral claim on the deceased’s estate from making a claim”, the Ministers indicated that they saw the amendments not as creating a new class of claimant but merely as expanding the boundaries of the old. Both before and after the amendments, the courts were and are required to ask whether, in the particular circumstances of the individual case, the deceased has abused the freedom of testamentary disposition and so has breached his or her moral duty to the claimant. In answering that question, the courts must have regard to the list to be found in s91(4). That list is entirely consistent with those considerations which, in dealing with applications under the legislation before the 1998 amendments came into operation, the courts customarily took into account.
[18]Administration and Probate Act 1958, s 91(1).
[19]Second Reading Speech by the Attorney-General (Hon Jan Wade) on the Wills Bill, Legislative Assembly, 9 October 1997, Hansard at 436; see also the Second Reading Speech on the same Bill by the Minister for Small Business (Hon Louise Asher), Legislative Council, 12 November 1997, Hansard at 449.
[20]Schmidt v Watkins [2002] VSC 273, [12].
In observations with particular significance to the disposition of the present matter, Harper J continued (emphasis added):[21]
… It is equally clear that a duty to provide in one's will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor and creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. Generally speaking, however, a "domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner" would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility (although, of course, in the particular case that responsibility might not arise or might already have been discharged).
In the context of this case (as will be seen when the facts are examined) it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors.
[21]Ibid, [22]-[23] (citations omitted).
In Blair v Blair[22] the Court of Appeal addressed the approach to be adopted in addressing the jurisdictional question in s 91(1) of the Act, noting the obligation on the Court to have regard to those matters set out in paragraphs (e)–(p) of s 91(4). Chernov JA, with whom Hansen AJA agreed, stated (emphasis added):[23]
Notwithstanding the dictates of this provision, it is probably apt to describe the obligation of the testator that forms the subject of the enquiry under subss (1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Part IV of the Act, including the decision of Ormiston J in Collicoat v. McMillan and Grey v. Harrison. Thus, it is clear enough that the “responsibility” of which subs (1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, subs (3) is essentially concerned with whether the deceased – as a wise and just testator – has fulfilled his moral obligation to make adequate provision for the claimant’s proper maintenance and support. Given, however, that the court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of sub-s 91(4) when determining the jurisdictional issues, characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part IV of the Act. Be that as it may, it should be noted that while the criterion in each of paras (e)-(o) of s 91(4) is concerned with a specific matter, para (p) is open ended, enabling the court to consider “any other matter [it] considers relevant” and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding subparagraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator’s moral obligation to the claimant.
[22][2004] VSCA 149.
[23]Ibid [13] (citations omitted).
In a concurring judgment, Nettle JA added the following observations in relation to what his Honour described as the ‘continuing relevance of the conception of moral duty to the jurisdictional questions’ posed by ss 91(1) and (3) of the Act (emphasis added):[24]
The court is bound in answering each of those question to have regard to the matters mentioned in ss 91(4)(e) to (o) and, pursuant to s 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.[25]
[24]Ibid [40]-[41].
[25]Collicoat v McMillan [1999] 3 VR 803, 815 (Ormiston JA).
Defendant’s submissions
The central proposition advanced by the defendant was that, taking the plaintiff’s case at its highest, the evidence advanced in support of her claim does not, on any view, establish that the deceased had a responsibility to provide for the plaintiff. As a consequence, the Court’s jurisdiction under s 91 of the Act is not enlivened rendering the plaintiff’s claim as ‘unarguable’ or, in light of the authorities, ‘futile’.
The Court was submitted not to have jurisdiction to make an order under s 91(1) of the Act in favour of the plaintiff because, in the language of Harper J in Schmidt v Watkins referred to above, she does not fall ‘within that class of persons for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support’.[26] The defendant emphasised his Honour’s statement that ‘a duty to provide … for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality’.[27]
[26]Schmidt v Watkins [2002] VSC 273, [8] set out in paragraph 25 above.
[27]Ibid [22].
The defendant also relied upon the following statement by Whelan J in Webb & Ors v Ryan & Anor:[28]
It is clear that since the amendments made to the legislation in 1997 an applicant under Part IV of the Act need not be a member of the deceased’s family. But it is significant that in dealing with the relationship between the applicant and the deceased, the Act imposes a requirement that the court have regard to “any family or other relationship” between the deceased person and the applicant. The reference to “other relationship” gains colour from the specific reference to family. Thus, where the applicant is not a family member this factor, the continued use in the legislation of the concept of “proper maintenance and support”, and the historical origins of the legislation, all combine to focus the inquiry on whether the deceased and the applicant had a relationship which, at the least, had a material resemblance or equivalence to the type of family relationship from which notions of moral duty and obligation are commonly derived.
His Honour continued:[29]
The kind of non-family relationship which will give rise to a responsibility to provide for a person’s proper maintenance and support will be a rare and exceptional one. A mere business relationship would not be enough. A relationship of friends or neighbours founded on acts of kindness or consideration well beyond the ordinary, even extraordinary generosity over an extraordinarily long period, may not do so. Contributions made to a deceased’s estate may perhaps give rise to a responsibility but generally they would not do so of themselves. A relationship might be special as a result of a wealth of shared experience, but that does not necessarily constitute a relationship by virtue of which there is a responsibility to make provision.
[28][2012] VSC 377, [17] (citations omitted).
[29]Ibid [23].
The defendant contended that the above authorities made clear that satisfaction of the jurisdictional requirement that the deceased owe a claimant a responsibility to make proper and adequate provision depended upon the existence of a relationship between the deceased and claimant of a particular quality. The quality that is referred to in the authorities was submitted to amount to a responsibility to provide, beyond a notion of fairness or generosity. Given this requirement, the plaintiff’s claim had no real prospect of success because she had no relationship at all with the deceased, let alone one of the requisite character.
In that regard the defendant relied upon the following statement by Mukhtar AsJ in Jackson v Newns[30] in which his Honour granted summary judgment against a claim under Part IV of the Act:[31]
But, the executor puts this application carefully. He accepts all that is contained in the plaintiff’s affidavit. Thus, questions about contested or additional evidence, the dynamics of trial and the deferral of more extensive argument to trial become immaterial. The question becomes the clinical one of asking now: on the plaintiff’s own evidence, is his case bound to fail because there is nothing to show that the plaintiff was a person for whom his uncle had a responsibility to make provision for proper maintenance and support? He says there was no moral duty at all.
[30][2011] VSC 32.
[31]Ibid [12].
Mukhtar AsJ expressly rejected the proposition that the provision made for the plaintiff in the deceased will:[32]
[32]Ibid [54].
…was a recognition by the deceased that he owed a moral duty to the plaintiff. The deceased was a widower with no natural children. His provision for the plaintiff is confirmation of the plaintiff’s evidence about the depth of their relationship, and maybe gratitude. But it does not bespeak a “responsibility”. He had two nephews, the plaintiff and Tim, and has chosen to provide for both in the way he has. The law gave him that freedom.
After referring to the ‘great caution … to be shown in applications for summary judgment’,[33] his Honour dismissed the claim and stated:[34]
Of course, the power to order summary judgment is one that should be exercised with great care: see Spencer v The Commonwealth. There is a natural uneasiness in taking away the interlocutory process and the trial. But not if, on the latest expression of the test for summary judgment, “there is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: see Spencer. For my part, if a case is “practically hopeless” as it was described by the judge in Atthow v McElhone, why let the case go on? Where is the injustice? I see no reason why summary judgment should not be granted especially if the facts are not in dispute. To allow a case to run on to trial which is regarded as practically hopeless only results in my view to the accumulation of costs and delays in the administration of the estate, all of which are detrimental.
[33]Ibid [60].
[34]Ibid [63] (citations omitted).
The defendant also sought to draw an analogy between the present case and the unusual circumstances which presented in MacEwan Shaw v Shaw.[35] In that case, the applicants for further provision – whose parents were alive - were the grandchildren of the deceased who had been the recipients of various types of financial assistance from their grandparents during their lives, and with whom they had self-evidently had a relationship. In rejecting their claim, Dodds-Streeton J stated:[36]
[35][2003] VSC 318.
[36]Ibid [213]-[217].
The amended legislation, while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off.
Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the court has no jurisdiction to make an order, no matter how large the testator's estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept.
Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and just testator would have applied. There must be an abuse of the freedom of testation.
Prevailing community standards, which may alter according to changing social and economic conditions, are the criteria against which the duty and moral obligation, and any departure from them, must be measured.
According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents.
Her Honour further stated:[37]
Similarly, Ms MacEwan has a primary responsibility to provide for the infant plaintiffs. She has taken steps to discharge her duties by qualifying as a teacher and by recently undertaking regular paid employment. The basic needs of the plaintiffs are currently being met and their parents, between them, have a capacity, albeit modest, to meet such needs. …
…
The fact that the child's parents are of modest means, while the estate could satisfy the claim without significant adverse impact on the chosen beneficiary, will not, without more, found a grandparental responsibility to provide maintenance and support.
[37]Ibid [233], [235].
‘Sibling’ cases
Neither party was able to refer the Court to any similar case involving a claim for further provision brought by a person whose relationship with a deceased might be described as that of ‘sibling-in-law’. The defendant provided however an extensive summary of cases brought by siblings under Part IV of the Act which it was submitted demonstrated that, even in the case of actual siblings, such claims had no prospect of success absent a parent–child like relationship between the deceased and the claimant. It was contended that no less conclusion must follow where the ‘sibling-like’ relationship between a claimant and the deceased was a result of marriage or domestic relationship.
A claim by a brother of a deceased succeeded in Marshall v Spillane. However, the deceased sibling had stood in loco parentis to the plaintiff, there being an age difference of over 20 years.[38] Justice Byrne found that the plaintiff ‘acted towards [the deceased] as a dutiful son and she towards him as a loving mother over the whole period of his life’.[39] As a result, the deceased ‘had moral responsibility towards him as might a parent’.[40]
[38][2001] VSC 371.
[39]Ibid [15].
[40]Ibid [16].
A claim by a sister against her brother’s estate failed in Sanderson v Bradley.[41] The deceased had left her a property but that gift had adeemed and the estate passed to a residuary beneficiary. Justice Balmford found that the plaintiff and deceased had a ‘normal sibling relationship’ which was in fact less close than many other such relationships. Despite the fact that, as here, the deceased had made provision for his sister in his will, the claim failed because: [42]
Having had regard to the several matters listed in s 91(4), I cannot find that the deceased had responsibility to make provision for the plaintiff. Theirs was a normal sibling relationship, less close than many such. I find nothing in the evidence to indicate that the deceased had any such responsibility.
[41][2004] VSC 231.
[42]Ibid [34].
In Hartnett & Hartnett v Taylor a claim by a sibling failed. The plaintiff had lived with her deceased sibling and had been provided with a life interest in the property they had lived in together. In dismissing the claim, Sifris J stated that ‘the benchmark for a testator to make provision for a sibling is set high and seems to require a relationship which could be characterised as a loving parent and child relationship’.[43] Although the plaintiff and deceased lived together for a lengthy period, the relationship was a ‘normal sibling relationship’.[44]
[43][2014] VSC 427, [60].
[44]Ibid.
In Peterson v Micevski, two plaintiff sisters claimed that their deceased sister had an obligation to provide for them because she had received their father’s estate as an inter vivos gift.[45] The argument which was put and rejected by Hansen J was that the father’s responsibility to make provision for his children was in effect ‘transferred’ to the deceased daughter. Justice Hansen instead examined the substance and nature of the family relationship.
[45][2007] VSC 280.
In Re Will and Estate of Marotta a childless and unmarried man left his estate largely to his niece with a legacy to his sister, the plaintiff, who sought further provision.[46] The plaintiff submitted that the deceased had supported her and her children emotionally and financially when she was widowed as a young mother and he had acted as a father figure to her children. In considering an application for summary dismissal, Zammit AsJ (as she then was) stated that: [47]
An ordinary sibling relationship will not in the absence of special circumstances provide a basis for interference with testamentary freedom.
The application for summary judgment was dismissed because there was evidence of financial and emotional assistance. However, ‘[i]f there was no evidence before the Court in relation to financial and emotional assistance then it would be appropriate for the matter to be summarily dismissed’.[48]
[46][2011] VSC 324.
[47]Ibid [49].
[48]Ibid [50].
In Fanning v Harding the Court of Appeal allowed a sibling an extension of time in which to bring a claim, noting that the very intimate and personal care provided by the plaintiff to her deceased sister: [49]
…in our view takes the relationship outside that of ordinary siblings. The contribution made by Fanning to the deceased’s welfare at perhaps the most vulnerable time of her sister’s life supports an arguable case that the relationship was a special one which went beyond the existence of a good and close relationship between siblings.
[49][2013] VSCA 208, [24] (citations omitted).
The plaintiff submitted that the common thread running through all of the sibling cases was the importance of assessing, when determining whether a deceased had a responsibility to provide for his or her sibling, the nature and quality of the relationship between them.
In relation to the considerations listed in s 91(4) of the Act, the defendant submitted as follows:
· as to paragraph (e), the plaintiff had never met the deceased and did not have an actual relationship with him;
· as to paragraph (f), the deceased was not obliged to provide for a person who he had never met;
· as to paragraph (g), the estate is reasonably sized;
· as to paragraph (h), the plaintiff is of modest means;
· as to paragraph (i), the plaintiff is autistic and has a mild intellectual disability;
· as to paragraph (j), the plaintiff is 56 years of age;
· as to paragraph (k), the plaintiff did not make any contribution to the building up of the estate or the welfare of the deceased;
· as to paragraph (l), the deceased gave no benefits to the plaintiff;
· as to paragraph (m), the plaintiff had never been maintained by the deceased before his death;
· as to paragraph (n), the plaintiff has been maintained by her parents, and the three of them live in a unit that the parents own unencumbered;
· as to paragraph (o), Michael has agreed to become the plaintiff’s principal carer in due course;
· as to paragraph (p), it is unclear as to whether the deceased would have still provided for the plaintiff had he known that Michael was to kill him, and had Michael died before the deceased, the deceased may have changed his will and the plaintiff may not have received any part of the deceased’s estate.
Plaintiff’s submissions
Counsel for the plaintiff emphasised that the features of this case presented a unique factual matrix, not directly comparable to any decided case. Counsel submitted that the ultimate determination of the proceeding would depend upon the application of that unique factual matrix to the provisions of the Act in circumstances where those provisions did not contain any prescribed category of applicants, but instead enabled the Court to determine on a case by case basis whether a claimant was a person to whom the deceased owed a responsibility to make provision for out of their estate.
In support of the need to proceed on a case by case basis, the plaintiff referred to the decision of Kaye J (as he then was) in Unger v Sanchez[50] in which a claimant under Part IV succeeded notwithstanding that the person was unrelated to the deceased but had been a close friend for many years and provided the deceased with great assistance during her life. His Honour stated:[51]
The nature and content of the moral obligation of the wise and just testator is not fixed or static. Rather, it is a flexible concept, the measure of which is adapted to conform with what is considered to be right and proper according to contemporary accepted community standards.[52]
The plaintiff also relied upon Iwasivka v State Trustees[53] as a further illustration of a successful claimant under Part IV of the Act who was only very distantly related by marriage to the deceased.
[50][2009] VSC 541.
[51]Ibid [66].
[52]Collicoat v McMillan [1999] 3 VR 803, 818 [43] (Ormiston J); Lee v Hearn [2005] VSCA 127, [8] (Callaway JA).
[53][2005] VSC 323.
The plaintiff also relied upon the judgment of the Court of Appeal in Blair v Blair[54] referred to earlier in these reasons in support of the proposition that, when determining whether an applicant was a person for whom the deceased had a responsibility to make provision for out of their estate, it was necessary for the Court to consider, amongst other things, ‘any other matter the Court considered relevant’ as referred in s 91(4)(p). The plaintiff referred to the judgment of Mandie J in Petrucci v Fields[55] to demonstrate the width of this provision and as an illustration of a case which was determined principally on the basis of ‘other matters’ that the Court considered to be relevant.
[54][2004] VSCA 149.
[55][2004] VSC 425.
In oral submissions, counsel for the plaintiff identified three ‘special circumstances’ which, it was submitted, were relevant matters to be taken into account pursuant to s 91(4)(p) of the Act:
(a) the plaintiff is an adult under a disability;
(b)the plaintiff is not able to provide for herself and is dependent upon the care of her elderly parents, which care will likely end in the future; and
(c)the plaintiff has a sibling (Michael) living in Victoria who was in a long term relationship without ‘ordinary family commitments of his own’, such as dependent children, and the other siblings live interstate, making it more likely that Michael will have the responsibility to provide for the plaintiff.
The plaintiff argued that these circumstances ‘cast the spotlight wider’ in identifying who had a responsibility to provide for the plaintiff, including the deceased.
On the basis of these special circumstances, the plaintiff submitted that the case posed interesting and unique questions for the Court, namely:
(a)What would prevailing community standards, being the criteria against which moral duty and obligation must be required, require in this case?
(b)Where one has an adult disabled sibling, under the care of their parents who will be expected to eventually pass on and especially when one has no children of their own, do community standards expect a sibling of such disabled sibling to have some obligation to make provision out of their estate for them?
(c)Where such a sibling is in a marital relationship or the equivalent, should such obligations also flow on to their spouse? [56]
[56]It was not contested that the deceased and Michael were in a very long term same sex relationship and were for all purposes spouses.
Counsel for the plaintiff submitted that, in light of the above propositions, the question of whether or not the deceased owed a responsibility to make provision for the plaintiff was a debatable point of law. Reliance was placed on the statement by Derham AsJ in Re Bertine that the court ‘will not make an order summarily dismissing a claim where the claim raises a debatable point of law’.[57]
[57][2019] VSC 228, [65].
In relation to the ‘sibling cases’ referred to by the defendant, the plaintiff accepted that they established that, ordinarily, or in the absence of special circumstances, a sibling relationship would not be sufficient to provide the basis for a successful claim under Part IV of the Act. It was contended however that the present matter did not involve an ordinary sibling relationship because of the existence of the special circumstances referred to above. In none of the cases relied on by the defendant was the claimant a disabled sibling being cared for by her elderly parents.
The fact that the plaintiff had never met the deceased was submitted to be explicable by the unique facts of the case and in particular the fact that that Michael’s relationship with the deceased was not revealed to his family. Nevertheless, the plaintiff was named in the will as an alternate beneficiary. Moreover, it was submitted that there is no indication in s 91 that it is a prerequisite that a person claiming further provision have met the deceased.
Counsel for the plaintiff sought to distinguish Jackson v Newns relied on by the defendant on the basis that the ratio decideni of the decision was merely that, in the circumstances of that case, there was no responsibility owed beyond an obligation to provide $250,000, because the will, unlike the present case, did make provision in that amount for the claimant.
In resisting an order for summary dismissal, it was contended on behalf of the plaintiff that it could not be asserted that, as a permanently disabled person and disability pensioner, the plaintiff was not in a position of some financial need and not in need of additional long term financial security. Although her parents had the primary obligation to make provision for her out of their estates, it was submitted that the plaintiff was one of five children and the estate of the survivor of her parents was likely to be modest.
It was also submitted on behalf of the plaintiff that the circumstances of the deceased’s death were irrelevant to the plaintiff’s position in this proceeding because Michael had already forfeited any entitlement to take any benefit in his estate. There was no basis for treating the circumstances of the deceased’s death as a factor which would otherwise extinguish any obligation otherwise owed by the deceased to the plaintiff.
Finally, the plaintiff submitted in the alternative to its submissions in opposition to the application for summary judgment, that this case was an appropriate case for the Court to exercise its discretion pursuant to s 64 of the Civil Procedure Act to direct the plaintiff’s claim be determined at a full trial after consideration of all issues. The plaintiff took issue with the defendant’s contention that, because the application for summary dismissal did not involve any contested issues of fact and was based upon the plaintiff’s own evidence, the Court as presently constituted was in as good a position as the trial judge to determine the jurisdictional issue. It was submitted that the Court could not proceed on such a basis in the absence of an undertaking from the defendant – which was not proffered – that at trial it would not adduce any evidence of its own and that it would not seek to cross-examine the plaintiff's litigation guardian in relation to her affidavit.
Consideration
The Court as presently constituted is in as good a position as at trial to determine whether the plaintiff was a person to whom the deceased had a responsibility to make provision for her proper maintenance and support so as to enliven the Court’s jurisdiction under Part IV of the Act. There is no controversy about the principles of law which apply to the determination of that jurisdictional question. The evidence relied upon by the plaintiff is uncontested and she has had an opportunity to file any further affidavit material in support of her claim. The application for summary dismissal takes the plaintiff’s evidentiary case at its highest and has been brought in a timely way. If the matter proceeded to trial, it is difficult to conceive of how the plaintiff’s case could be improved. Contrary to the plaintiff’s submissions, in dealing with the application for summary dismissal in this way, there is no occasion to require the defendants to give undertakings to the Court about how it would run its case at trial in the event that the proceeding is not dismissed.
I am nonetheless cognisant that the power to summarily dismiss a proceeding must be exercised with caution. Adopting that approach, for the reasons which follow, I have determined that the plaintiff’s application under Part IV of the Act should be summarily dismissed as it is bound to fail. I have reached that conclusion because, taking the plaintiff’s case it its highest and having regard to the considerations set out in s 91(4) of the Act, there is no real question to be tried that the deceased had a responsibility to make provision for the plaintiff from his estate. I consider that, in the circumstances of this case, the contrary view is unarguable.
I accept as counsel for the plaintiff submitted that the Act in its terms relevant to this proceeding did not require a claimant under Part IV to be a particular class of relative or person and that it contemplates that the Court will determine on a case-by-case basis whether the claimant is a person to whom the deceased owed a responsibility to make provision for out of his estate. I also accept that the facts and circumstances of this case are quite unique.
These acknowledgements however do not take the plaintiff very far. As stated by Harper J in Schmidt v Watkins,[58] the Court does not exercise ‘an unprincipled discretion to decide whether a particular claimant was or was not a person for whom the deceased had the requisite responsibility’. The particular circumstances of this case – however unique – fall to be considered by reference to established principles in relation to provisions of the Act which confer only a limited jurisdiction to interfere with freedom of testation. As Dodds-Streeton J stated in MacEwan Shaw v Shaw, the Act ‘does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off’.[59]
[58]See paragraph 25 above.
[59]See paragraph 35 above.
The authorities referred to above make clear that, in determining the jurisdictional question posed by s 91(1) of the Act, the Court is bound to have regard to each of the matters set out in s 91(4)(e) to (o) and any other matter relevant pursuant to s 91(4)(p). Here, as counsel for the defendant acknowledged,[60] a number of those considerations, viewed in isolation, might be suggestive of a positive answer to the jurisdictional question. However, as Nettle JA (as he then was) made clear in Blair, the matters referred set out in those paragraphs of s 91(4) are themselves incapable of providing an answer to the jurisdictional question. In taking those matters into account in determining whether a testator had a responsibility to make provision for a claimant, the test is whether a wise and just testator would have thought it his or her moral duty to make provision for the claimant.
[60]See paragraph 44 above.
Counsel for the plaintiff accepted that the determination of whether or not the deceased had a moral duty to provide for the plaintiff requires an examination of the nature and substance of the relationship between them. In focusing on that matter, the defining, but not only, relevant feature of this case is that the plaintiff and the deceased never met. Save that they were ‘de facto siblings in-law’, they had no actual relationship. In this sense, as counsel for the plaintiff accepted, the plaintiff had only a ‘bare’ or ‘nominal’ relationship with the deceased. [61]
[61]This acceptance was subject to the qualification that the plaintiff might in the future have had a much closer relationship with the deceased.
Counsel for the plaintiff submitted that, in considering the relationship between a deceased and a claimant under Part IV of the Act, the relevant enquiry concerned their ‘connection’, as distinct from, for example, whether and how often they had met, what they did with and for each other and how they may have supported each other.
No authority was identified to support the proposition that an examination of the relationship between a deceased and a claimant under Part IV of the Act was directed at the identification of their ‘connection’. While the identification of the ‘connection’ between a deceased and a claimant under Part IV of the Act (such as that of de facto siblings in-law) would self-evidently form part of the examination with which the jurisdictional question is concerned, as counsel for the plaintiff acknowledged, that examination concerns the ‘nature’ and ‘substance’ of the identified relationship or ‘connection’. The plaintiff’s submission that s 91 does not impose any prerequisite that a claimant under Part IV of the Act have actually met the deceased misses the point. The fact that a claimant under Part IV of the Act had a particular ‘connection’ with the deceased is only the beginning of the analysis. Here, the relationship of de facto siblings in-law between the deceased and the plaintiff was devoid of any substance because they had never met. The reasons why the plaintiff and the deceased never met are in my view of little consequence in determining the jurisdictional question.
The plaintiff’s emphasis upon the existence of a mere connection between the plaintiff and the deceased as de facto siblings in-law is also contrary to the principles which emerge from the line of authorities dealing with claims for further provision brought by siblings.[62] As counsel for the plaintiff accepted, those authorities establish that, ordinarily and in the absence of special circumstances, a sibling relationship will be insufficient to provide a basis for a successful claim under Part IV of the Act. The bare existence of a sibling relationship, or ‘connection’ as the plaintiff submits, is insufficient to establish that a deceased had a responsibility to make provision for their sibling.[63] There is no logical or rational reason why prevailing community standards would more readily identify such a responsibility in the context of a sibling relationship created by marriage or other relationship.
[62]See paragraphs 37–42 above.
[63]As stated by Zammit AsJ (as she then was) at [49] in Re Will and Estate of Marotta [2011] VSC 324, ‘An ordinary sibling relationship will not in the absence of special circumstances provide a basis for interference with testamentary freedom’. Her Honour also observed at [50] that, 'If there was no evidence before the court in relation to financial and emotional assistance, then it would be appropriate for the matter to be summarily dismissed'.
The plaintiff’s description of the matters referred to in paragraph 48 above as ‘special circumstances’ which justify a departure from the general positon in the sibling cases is a misnomer. As counsel for the defendant submitted, they are all matters which the Court must take into account in determining the question of jurisdiction posed by s 91(1) of the Act. The fact that the plaintiff is an adult under a disability is a matter to which the Court must already have regard pursuant to paragraph (i) of s 91(4). The fact that the plaintiff is being cared for by her parents is a matter to be taken into account pursuant to paragraph (n) of s 91(4). The fact that the deceased did not have children of his own is a factor to be take into account pursuant to paragraph (f) of s 91(4). I agree with the defendant’s submission that whether or not Michael has children is not relevant to the plaintiff’s claim for further provision from the deceased’s estate. The plaintiff has not identified any ‘special circumstances’ which might be relevant ‘other matters’ to be taken into account pursuant to s 91(4)(p) and which would not fall for consideration in any event within one of the other paragraphs in s 91(4). It follows that I do not accept that there is a proper foundation for the claim that this case poses the ‘interesting and unique’ questions referred to by the plaintiff so as to make the it unsuitable for summary dismissal.[64]
[64]See paragraph 49 above.
Nor is it correct to say, on the basis of Derham AsJ’s judgment in Re Bertine, that the plaintiff’s claim raises a ‘debatable point of law’ so as to render the grant of summary dismissal as inappropriate. His Honour’s observations were not made in relation to proceedings under Part IV of the Act but in the context of the Court’s probate jurisdiction about which his Honour accurately described the Court as having ‘an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings’.[65] In any event, the proceeding does not raise a debateable question of law because there is no controversy between the parties about the legal principles which govern the determination of the question of jurisdiction in s 91(1) of the Act.
[65][2019] VSC 228, [18].
As stated by Harper J in Schmidt v Watkins,[66] a duty to provide for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a ‘particular quality’. His Honour referred to a ‘"domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner"’ as being sufficient to bring either one of those partners within the class of persons to whom the other had responsibility. To similar effect, Whelan J’s statement in Webb v Ryan,[67] suggests that the focus is on whether the relationship had ‘a material resemblance or equivalence to the type of family relationship from which notions of moral duty and obligation are commonly derived’.
[66]See paragraphs 25 to 27 above.
[67]See paragraph 31 above
It is unnecessary for the purposes of this application to chart the metes and bounds of the ‘particular quality’ which must be evident in a relationship to give rise to the duty on a testator to make provision for a person. That is because, in this case, there was no actual relationship between the plaintiff and deceased, let alone one of ‘particular quality’. The authorities to which I have referred make clear that the question of jurisdiction is to be determined by reference to the nature and quality of the relevant relationship, not the mere fact that a claimant under Part IV is related to the deceased by blood, marriage or otherwise.[68]
[68]In the case of parent/child relationships, as stated by Robb J in Lado Causillas v NSW Trustee & Guardian [2015] NSWSC 1204 at [337], ‘The parent’s responsibility for bringing the child into the world leads to the assumption of a duty to be concerned for the child’s welfare that may entitle the child to the making of a family provision order, even in an extreme case where the parent did not become aware of the birth of the child’. This reflects what Bryson J referred to as the ‘very great importance in morality’ of the ‘bare fact [of paternity]’: Gorton v Parks (1989) 17 NSWLR 1, 10. Nevertheless, even in such cases, ‘The entitlement to an appropriate family provision order does not, however, flow from the mere fact of a parental relationship. All relevant circumstances must be taken into account, and there may be occasions when the responsibility of the child for the estrangement between the child and the parent will diminish or negate the parent’s duty to be concerned with the welfare of the child’: Lado Causillas at [337].
There are two other specific features of this case which, in addition to the absence of any actual relationship between the deceased, support a conclusion that the deceased did not owe a duty or moral obligation to the de facto sister-in-law he never met. First, there is no evidence that the deceased ever gave any indication that he felt obliged or duty-bound to provide for the plaintiff, or that he otherwise acknowledged, assumed or adopted any responsibility towards her. For the reasons given by Mukhtar AsJ in Jackson v Newns,[69] with which I agree, the fact that the will in this case included a substitute residuary clause pursuant to which the plaintiff might benefit, is not evidence that the deceased had or accepted a responsibility to provide for the plaintiff. It is possible to conceive of a case where a deceased accepted responsibility to provide for a sibling in-law that they never met. It might be that, in an appropriate case, having regard to the considerations in s 91(4), the evidence might be sufficient to satisfy the jurisdictional question in s 91 of the Act. That, however, is not this case. There is no evidence from which it could be inferred that the deceased acknowledged or accepted any obligation towards the plaintiff.
[69]See paragraph 34 above.
The second feature to which I refer is the fact that, analogously with Dodds-Streeton J’s observations in MacEwan Shaw v Shaw,[70] it is the plaintiff’s parents who have prime responsibility to make provision for her. Although their capacity to continue to discharge that responsibility on an ongoing basis into the future is limited by their advanced years, it appears likely that they will leave an estate, albeit modest in size,[71] of which the plaintiff would likely have a paramount claim as compared to her able bodied siblings who live overseas and interstate.
[70]See paragraph 35 above.
[71]See the matters referred to in paragraph 16 above.
I consider that, on the plaintiff’s evidentiary case, these features together with the fact that the deceased never met the plaintiff, render as untenable the proposition that the deceased had a moral duty to provide for the plaintiff. I do so having taken into account those other matters referred to in s 91(4) of the Act which might otherwise be said to answer the jurisdictional question posed by s 94(1) in the plaintiff’s favour and in particular the fact that the plaintiff is a permanently disabled person of limited means who is in a position of some financial need and long term financial security. Those considerations do not alter the fact that the existence or otherwise of a responsibility to provide requires the existence of a relationship between a claimant and a deceased of a ‘particular quality’.
The authorities of Unger v Sanchez, Iwasivka and Petrucci v Fields do not assist the plaintiff’s case. Although in Unger v Sanchez the successful plaintiff was not a member of the deceased’s family, she was a person who befriended an elderly couple and provided them with extraordinary care. [72] Kaye J (as he then was) was satisfied on the evidence that the plaintiff and the deceased had a ‘”quasi-parental” relationship’[73] that was ‘closely akin to that of a daughter to an elderly mother'.[74] Analogously in Iwasivka,[75] although the successful plaintiff was a niece by marriage,[76] ‘the true characterisation of their relationship was that of mother and daughter or as close as it may be’.[77] It was that relationship which ‘provided the foundation for the deceased having had responsibility to make provision for the plaintiff.'[78] In Petrucci v Fields,[79] although the successful plaintiff was a daughter-in-law, she was particularly dutiful, regularly cooking and cleaning for her parents-in-law during her mother-in-law’s long illness and continuing to do so for her father-in-law (the deceased) after her mother-in-law passed away.[80] The plaintiff visited the deceased at least weekly over a period of 32 years.[81]
[72][2009] VSC 541.
[73]Ibid [89].
[74]Ibid [88].
[75][2005] VSC 323.
[76] The plaintiff’s father was the brother of the deceased’s husband.
[77]Iwasivka v State Trustees Ltd [2005] VSC 323, [69] (Hansen J).
[78]As submitted by the plaintiff at [71] and accepted by the Court at [93].
[79][2004] VSC 425.
[80]Ibid [49].
[81]Ibid.
Contrary to the plaintiff’s submissions, the above three authorities provide further illustration of the principle that it is the nature and quality of the relationship between the deceased and a claimant under Part IV of the Act – rather than the mere connection between them – which gives rise to the obligation of the deceased to make provision for another.
For the above reasons, the plaintiff’s application under Part IV of the Act should be dismissed because it is bound to fail. In my view, there is no real prospect of establishing that the deceased owed a responsibility to make provision for the plaintiff’s maintenance and support from his estate.
Section 64 of the Civil Procedure Act 2010
Having determined that the plaintiff’s claim has no real prospect of success, I reject the plaintiff’s submission that this is an appropriate case for the Court to exercise its discretion pursuant to s 64 of the Civil Procedure Act 2010 to direct the plaintiff’s claim be determined at a full trial after consideration of all issues. The application for summary dismissal has been brought at an early stage in the proceeding and takes aim at the plaintiff’s case by reference to her own uncontroverted evidence. The Court as presently constituted is in as good a position as the trial judge to determine the jurisdictional issue and there is no occasion to require the defendant to give undertakings[82] in relation to how it might conduct its case at trial in order to entertain the summary dismissal application. In exercising my discretion I also take into account the desirability of avoiding unnecessary further litigation over the deceased’s estate in circumstances where considerable litigation has already occurred and where the deceased died more than seven years ago in violent circumstances which must have been particularly traumatic for his family and friends. Given these matters, there is no utility in proceeding to trial with a case which rests upon an unarguable jurisdictional basis.
[82]The plaintiff submitted that the Court should not proceed on the basis that the Court as presently constituted is in the same positon as the trial judge unless the defendant undertook that at trial it would not adduce any evidence of its own and that it would not seek to cross-examine the plaintiff's litigation guardian in relation to her affidavit.
I will hear the parties on costs.
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