Rooney v Saunders and Dobell
[2014] VCC 338
•2 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-13-01792
IN THE MATTER of an application pursuant to Part IV of the Administration and Probate Act 1958 (as amended)
-and-
IN THE MATTER of the Will and Estate of IRIS MORRIS, deceased
| JACQUELINE ROONEY | Plaintiff | |
| v | ||
| DEBORAH GAIL SAUNDERS (who is sued as the Executor of the Will of the above-named deceased) | First Defendant | |
| and | ||
| VIVIENNE LINDA DOBELL | Second Defendant | |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 14 March 2014 | |
DATE OF JUDGMENT: | 2 April 2014 | |
CASE MAY BE CITED AS: | Rooney v Saunders & Dobell | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 338 | |
REASONS FOR JUDGMENT
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Subject: TESTATOR'S FAMILY MAINTENANCE
Catchwords: Claim by a grandchild – written testamentary statement specifically excluding grandchildren – whether there were any additional and special factors of significance in the relationship between the granddaughter and the deceased to establish responsibility – whether the granddaughter could establish need – competing moral claims of the surviving daughters of the deceased – whether any provision should be made
Legislation Cited: Administration and Probate Act 1958, s91(1), s(4)(e)-(p)
Cases Cited:Scarlett v Scarlett [2012] VSC 515; Tomamichel & Ors v McCann [2014] VCC 246; MacEwan Shaw v Shaw (2003) 11 VR 95; Petrucci v Fields [2004] VSC 425.
Judgment: Provision be made for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M McKenzie | Adams Maguire Sier |
| For the Defendants | Mr R Shepherd | The Probate Professionals |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 10 April 2013, the plaintiff, Jacqueline Rooney (“Jacqueline”), seeks provision out of the estate of Iris Morris (“Iris”) for her maintenance and support pursuant to s91(1) of the Administration and Probate Act 1958 (“the Act”).
2 Mr M McKenzie of Counsel appeared for Jacqueline. Mr R Shepherd of Counsel appeared for the first defendant, Deborah Gail Saunders (“Deborah”), and the second defendant, Vivienne Linda Dobell (“Vivienne”).
3 Deborah and Vivienne are the daughters of Iris. Jacqueline is Iris’s granddaughter. Iris died on 8 August 2012 when she was eighty-one years of age. Both Deborah and Vivienne are named as executors and trustees in Iris’s Will dated 28 July 2012. However, only Deborah applied for and proved Iris’s Will, and was granted probate on 19 October 2012. Subsequently, Vivienne applied for leave to be joined as a second defendant. That leave was granted.
4 In addition to Jacqueline, her brother, Jarrod Michael Vincent, was a second plaintiff at the time when the Originating Motion was filed. He filed a Notice of Discontinuance dated 18 February 2014, wholly discontinuing his proceeding.
The family tree
5 William Morris (“William”) was born on 31 October 1921. He married Iris in 1946. Iris was born in 1931. William is deceased. William and Iris had three daughters: Christine, who was born on 24 July 1949, and who died on 11 November 2008; Vivienne, who was born on 29 April 1953 and is now nearly sixty years of age, and Deborah, who was born on 25 June 1957 and is now fifty-six years of age.
Iris’s estate
6 At the time of Iris’s death, her estate comprised a property at 9 Maggs Street, Croydon (“Maggs Street”) valued at approximately $399,000, a cash deposit in a banking account of $542,738.29, and a cash deposit in a solicitor’s trust account of $672.36.
Iris’s Will
7 Iris made a Will for the first time on 28 July 2012, some eleven days before she died. It was prepared by Mr M Spottiswood, Solicitor. He was engaged by Iris through the intervention of Lennard Trevor Saunders (“Lennard”), who is the husband of Deborah.
8 Iris gave the whole of her estate to Vivienne and Deborah. Accompanying the Will is a statement signed by Iris dated 28 July 2012, that is, the same date upon which she executed the Will. It is an important document, and the reason for that will be seen from the summary of the relevant facts below. The statement reads:
“To my Executors
This is not a testamentary act.
I have today executed my Will naming you as my executors.
I have made no provision for the children of my late daughter Christine Vincent.
The reason for this is that I do not have any meaningful relationship with them or their children and have had little or no contact with them for several years. They have demonstrated to me through their lack of concern for my welfare that they have no real interest in sustaining a relationship with [me].
I believe I have an obligation to provide for my surviving [children] but not my grandchildren and I have executed a Will which makes no provision for any grandchildren.
In the event of a challenge to the provisions of my Will I direct you to strongly resist any such challenge as it [is] my adamant and fundamental wish that only those beneficiaries named in my Will should take any benefit from my estate.”
The basis of Jacqueline’s case
9 In the course of Mr McKenzie’s opening, I enquired whether the basis upon which he would ultimately submit that the Jacqueline should succeed was that the death of her mother, Christine, constituted an additional or special factor of significance consistent with the observations made by Vickery J in Scarlett v Scarlett.[1] In response, he submitted that it was the very basis upon which Jacqueline’s case was based.
[1][2012] VSC 515
10 Coincidentally, and on the second day of the trial, I delivered a judgement in a matter of Tomamichel & Ors v McCann[2] which is a case of a claim by a grandchild which bore a similarity to Jacqueline’s case. I provided Mr McKenzie and Mr Shepherd with a copy of the judgment. I asked them to indicate whether they took any issue with my analysis of the principles of law in Tomamichel. Neither proposed that my analysis was wrong in any respect.
[2][2014] VCC 246
11 Therefore, I propose to recapitulate my analysis of the principles of law at this point in order to establish the test to be applied in determining whether a grandchild in the position of Jacqueline is owed a responsibility.
12 I propose to limit my reference to the guidance provided in the authorities to four Victorian decisions of the Supreme Court which I think amply demonstrate the approach which can be taken when a claim is made by a grandchild.
13 The first of those decisions is MacEwan Shaw v Shaw,[3] in which Dodds-Streeton J observed:
[3](2003) 11 VR 95 at [216-222]
“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.
For the defendant, it was submitted that in order to establish a grandparent’s moral obligation to provide for children, there must be ‘truly exceptional’ circumstances, where, for example, it is possible to conclude that the grandchild performed special services for the deceased requiring recognition (Collicoat v McMillan) or alternatively, that the deceased assumed a parental role at least for a time or to a material degree, establishing a substantial dependency.
The defendant further submitted that a relative want of resources in the parents does not, without more, create an obligation towards grandchildren, even if the deceased grandparent has habitually made significant gifts to those parents, which assisted them to fulfil the responsibility to provide for their children.
In contrast to the New South Wales legislation, the Victorian provisions impose no precondition of dependency in order to establish a moral duty to provide for a grandchild. The Victorian legislation is more flexible, although the determination of responsibility is governed by reference to specified factors.
While a grandparent’s assumption of the parental role of provider is a strong prima facie indicator of a responsibility, it is not conclusive. In every case, it would be necessary to consider the particular circumstances of the relationship and the impact of each of the other factors specified in s91(4)(e) - (p) of the Act.
Conversely, the absence of a de facto parental role in a grandparent will not necessarily exclude responsibility in the relevant sense. Where a grandparent of ample means has done nothing during life to assist a grandchild who has significant needs, the wise and just testator reflective of prevailing community standards might well recognise, in certain circumstances, a moral duty to provide.
In my opinion, however, where children are in the primary care of their own parents, who are capable of fulfilling their basic needs, prevailing community standards would not, in the absence of some special factor or unusual circumstances, impose on a grandparent a responsibility to provide.” [4]
[4]at [216]-[222]
14 In Petrucci v Fields,[5] Mandie J referred to part of the passage I have quoted from MacEwan Shaw v Shaw, and then observed:
“The above statements by Dodds-Streeton J must be read in the context of the case and the particular claim then before the Court. It seems to me that grandchildren can neither be ‘ruled in’ nor ‘ruled out’ until all the facts are examined. It is important to distinguish between the general obligation of parents to provide for and support their children and the potential responsibility, in the statutory sense, of a testator, who is a grandparent, to make provision out of his estate for the proper maintenance and support of grandchildren. The obligation of living parents to provide for their children does not necessarily negate, in an appropriate case, the moral responsibility of a grandparent to make provision for the maintenance and support of those grandchildren out of his estate.
In the present case, the plaintiff grandchildren had a normal relationship with the deceased until the death of their father, but not a special or dependent relationship. They do have, I think, a clear need for some provision for their long-term security. They will probably not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and contingencies of life for themselves. In addition, as I have said, they have lost any possibility of immediate or continuing support from their father. In that context, according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provision for them.
I consider that a wise and just testator would not have been bound to make any provision for the immediate needs of the grandchildren. However, I think that a wise and just testator would, looking at the family line constituted by the first plaintiff and her adult children, and considering the loss of their husband and father, conclude that he had a responsibility in the particular circumstances to make some provision for the grandchildren’s future needs.”[6]
[5][2004] VSC 425
[6]at [64[-[66]
15 In a similar vein in Scarlett v Scarlett,[7] Vickery J reviewed a number of authorities, including MacEwan Shaw and Petrucci, and then observed:
[7]Supra
“Pulling these threads together in relation to claims by grandchildren under the Act the following may be said:
(a) There is no moral obligation upon a grandparent to make provision for the maintenance and support of his or her grandchildren simply by virtue of the existence of such a relationship. Such a moral obligation will normally rest upon the parents of a grandchild but not the grandparents;
(b) Additional or special factors need to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. The presence and nature of these additional factors will vary from case to case, as will the weight to be assigned to each in the mix of considerations.
(c) The categories of ‘additional or special factors’ are not closed. In every case, it will be necessary to consider the particular circumstances of the relationship and the impact of each of the other factors specified in s 91(4)(e)–(p) of the Act to which are to be applied the standards of a wise and just testator when measured against prevailing community standards.
(d) Examples of relevant additional or special factors include:
(i) where the testator had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent (in loco parentis) than a grandparent, with direct responsibility for the grandchild’s support and welfare. However, absence of a de facto parental role will not necessarily exclude responsibility to provide in a will;
(ii) where the testator has undertaken a continuing and substantial responsibility to support the grandchild financially;
(iii) where particular care and material support combined with emotional comfort and affection has been provided by a grandchild to his or her grandparent;
(iv) it is also relevant to consider whether a grandchild has lost the immediate and continuing support of a parent who would normally be expected to have assumed direct responsibility for the grandchild’s advancement and welfare and what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents for future needs.
(d)(sic) Generosity shown by the grandparent to a grandchild, including contribution to the education of the child, even if manifested by a pattern of significant generosity, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent as distinct from one of voluntary support, generosity and indulgence.
(e)(sic) Considerations of fairness, where for example grandchildren from one side of the family are preferred in the will over those from another branch of the family, are irrelevant. The purpose of the discretion vested in the court is not to re-write the will of a deceased to achieve a fairer distribution of the assets of the deceased.”[8]
[8]at [101]
16 Mandie J made an observation which is relevant to the proceeding before me; that being, the wise and just testator should look at the family line when determining whether he had a responsibility in the particular circumstances to make provision for a grandchild. Vickery J made a very similar observation.[9]
[9]Scarlett v Scarlett (supra) at [114]
Jacqueline's evidence
17 Jacqueline was born on 7 December 1976. She is now thirty-seven years of age. She married Travis on 6 February 1999. They have three children: Jake, who was born on 12 November 1999; Blair, who was born on 24 September 2001, and Mia, who was born on December 2003.
18 Initially, Jacqueline and Travis purchased a house in Eltham in May 1997. They purchased it for $129,000. In January 2002, they moved to Adelaide because of Travis’s work commitments. They moved back to Melbourne in December 2002 because Jacqueline did not like Adelaide. They resumed living in the house at Eltham.
19 Some time later, Jacqueline and Travis purchased a home at 3 Coolong Terrace, Doreen (“the Doreen property”) which is an outer suburb north-east of Melbourne. They purchased a block of land in 2003, and then built a house on the land in 2005. They lived with Travis’s parents while their house was being built. Jacqueline and Travis moved to Newcastle in New South Wales in about January 2010 with their children. They continue to live in Newcastle.
20 Travis is a draughtsman by occupation. He has pursued that occupation throughout the time that he and Jacqueline have been married. Recently, he was made redundant. He is presently out of work. He last worked for CH2M Hill Australia Pty Ltd. He was made redundant on 29 July 2013. He received a redundancy payment totalling $36,773.36.[10] According to Jacqueline, most of that redundancy payment has been spent on family expenses.
[10]Exhibit 4
21 Under cross-examination, Jacqueline said that from about 1994 to 1999, she worked as an accounts clerk. From about 1999 to about 2008, she worked at the Montmorency RSL, working about 30 hours per week in the bar. She did not work from 2008 until January 2009, when she obtained casual employment in accounts as a data entry operator with Ground Breaking Mining Solutions. Her taxation returns for the year ending 30 June 2013 reveal that she earned $7,734 gross with $648 tax withheld. I assume that was income she earned from January 2013 to 30 June 2013. Assuming 26 weeks, that amounts to about $272 net per week. In addition, Jacqueline earns income from the rental from the Doreen property of $5,672, which is half of the total rental. The other half is attributed to Travis and is disclosed in his equivalent taxation return.
22 Before Travis was made redundant, he earned $139,113 gross with tax withheld of $41,808 for the year ending 30 June 2013.[11] Additionally, he earned half the rental of the Doreen property.
[11]Exhibit 3
23 Although there was no evidence regarding Jacqueline and Travis's residence in Newcastle, I assume that they are living in rented accommodation.
24 Jacqueline and Travis’s assets and liabilities appear to be as follows:
· The value of the Doreen property – somewhere between $603,500 and $768,000 with a mortgage of $496,500, leaving a net equity of something between $107,000 and $271,500.
· Travis has superannuation of $139,113, and Jacqueline has superannuation of $5,000.
· Travis and Jacqueline have two cars, a Mazda purchased for $68,000, but probably of a significantly reduced current market value, and a Nissan purchased for $18,000, which is under a leasing arrangement. It probably has a significantly reduced market value as well.
· Jacqueline gave an estimate that her house contents, which she and Travis own, has an insurance value of $100,000.
Jacqueline’s relationship with Iris
25 Jacqueline swore two affidavits in support of her claim. The first was sworn on 23 July 2013. The second was sworn on 29 October 2013. In her first affidavit, she referred to the relationship she had with Iris in the broader context of the whole Morris family. Essentially, and in that context, she referred to the following:
· Christine saw Iris almost every Sunday at Maggs Street, assisting Iris with cooking, cleaning and taking her on outings. The inference is that while Christine was interacting with Iris, so was Jacqueline.
· Jacqueline said that she was involved in levels of interaction with Iris, and in particular, on occasions when Iris gave her presents; celebration of Mother's Day at lunches with other female members of the family; regular telephone contact, and other interaction involving Jarrod, Michael and Travis with Iris, for example the annual clean-up of the garden at Maggs Street.
· The level of interaction between Iris and Jacqueline occurred from about 1994 up until December 2010, and was reduced thereafter, because Jacqueline and Travis moved to Newcastle.
· Christine developed lung cancer. She died on 11 November 2008.
· Iris left Maggs Street and commenced living in a granny flat built by Deborah and Lennard at their home. That occurred some time in March 2011. They subsequently cared for Iris in all respects until she died. Jacqueline said that she continued to make telephone contact with Iris after she moved from Maggs Street.
26 Jacqueline’s first affidavit creates the impression that there was a loving relationship between Iris and Christine, and indeed, between Iris, Christine, Vivien and Deborah. There was some evidence that when Jacqueline was very young, and perhaps around eight years of age, that there was a cooling of the relationship between Iris and Christine, but that did not last. Eventually, their relationship resumed, and as far as I can deduce from the evidence, it resumed in a full sense.
27 Deborah swore an affidavit in reply on 1 October 2013. She specifically referred to Jacqueline’s affidavit commencing by saying “I am surprised and disappointed at its contents”, but when she came to traversing Jacqueline’s affidavit specifically, she did little more than pick up errors in Jacqueline’s affidavit, for example that Iris was affectionately known by close friends and family as “Hugo” and not as “Marge”.
28 Additionally, Deborah made the bald statement in that affidavit that Jacqueline is a grandchild of Iris and was not close to Iris “by any standard” and was estranged from Iris for substantial periods of Iris’s life. It is curious statement, because it was left unexplained as to what standard Deborah was applying, and indeed, what she actually meant by that statement.
29 Jacqueline swore an affidavit in reply on 29 October 2013 in which she took issue with the allegations that she was not close to Iris and was estranged from her. Essentially, she repeated what she had deposed to in her first affidavit, and added that her relationship with Iris was different from a mother-daughter relationship, but that there was a reciprocated relationship of care, love, kindness and respect.
30 Vivienne swore an affidavit on 25 February 2014. Vivienne has lived in New South Wales for a significant period of time. Despite that distance, she made a number of allegations consistent with the matters deposed to by Deborah, that Iris did not have a relationship with Jacqueline of the kind deposed to by her. Essentially, she said that Iris did not play a significant role in Jacqueline’s life, and that it was her belief that their relationship was a distant one. She recounted some conversations which she had with Iris where she is alleged to have said that she did not like Jacqueline and did not trust her. She also said that she had not witnessed any statement made by Iris suggesting that she wanted to have a relationship with Jacqueline.
31 Michael gave evidence based upon an outline of evidence which he used in the course of giving his oral evidence. The reason for that was the complaint made by Mr McKenzie that the affidavits sworn by Vivienne and Deborah were served outside the time provided for in procedural orders which I made some time ago, and which had deprived Jacqueline from being able to make a reasonable answer to those affidavits. Mr McKenzie and Mr Shepherd reached an agreement that the proceeding would go ahead notwithstanding the late service of those affidavits, and that Michael could give evidence in the manner he did as part of that agreement.
32 Michael is the father of Jacqueline. It would appear that he had a reasonable, if not a very good, relationship with Iris. He rang Iris often. He dropped in to see her right up to about a week before she died. He was part of the annual gardening clean-up at Maggs Street. His evidence suggested that at least he had a cordial and harmonious relationship with Iris. He said that on the occasions he spoke to Iris, that she did not say anything to him about the lack of visits made to her by Jacqueline. Nor did she say anything to him about the scattering of Christine's ashes or the doll, referred to below.
Cross-examination of Jacqueline
33 Mr Shepherd cross-examined the plaintiff at length, taking her to particular aspects of her first affidavit in which she referred to the interaction which she said she had with Iris, some of which I have summarised above. The cross-examination, essentially, was to the effect that Jacqueline did not have the degree of interaction with Iris as she alleged, and that the contact she had with her personally and by telephone was relatively insignificant. Jacqueline denied the thrust of the cross-examination.
34 What I found curious about the cross-examination is that neither Vivienne nor Deborah made an answer to Jacqueline’s first affidavit by traversing what she said in that affidavit to anywhere near the extent of the thrust of the cross-examination. Indeed, when they gave their evidence-in-chief, they adopted their affidavits, and then they were cross-examined. The cross-examination, and the re-examination of each of them, did not see either of them traverse what Jacqueline said in that affidavit on the subject of her interaction with Iris. Some of the cross-examination was very pointed. It was put to Jacqueline on many occasions that the evidence she gave about the extent and quality of the interaction she had with Iris was false. It was not my impression that either Vivienne or Deborah went that far, either in their affidavits or in the oral evidence.
35 There were two particular episodes which created significant friction on both sides of the family. The first involved Jacqueline failing to invite Iris and Deborah to join her in scattering Christine’s ashes. Jacqueline candidly admitted that she did not invite them. In her oral evidence, she said that it was a mistake. She said she was not thinking straight at the time when the event of a scattering of the ashes occurred. She apologised to Iris for the error. It must be remembered that despite the fact that Iris and Deborah were very seriously upset by Jacqueline’s failure, that Jacqueline was dealing with the remains of her own mother who had just died.
36 It is unfortunate that an event of this kind is something on which I need to make a determination. Any conclusion I express is likely to inflame the already diminished relationship which exists between Jacqueline’s side of the family and Vivienne and Deborah’s side of the family. I accept that Jacqueline was not thinking straight when she failed to invite Iris and Deborah to that event. I accept that she realised it was an error. I accept that she apologised to Iris and Deborah. I think the fact of the apology is a demonstration of remorse, but by the time the apology was given it would appear that some damage had been done permanently to what was probably a previously reasonable relationship between Iris and Jacqueline.
37 The other episode involved the retrieval of a doll which Iris had given to Christine. It is obvious that Iris considered it a highly cherished object. After Christine died, Deborah attempted to retrieve it. She went to Christine’s home. She said that Jacqueline’s behaviour was “horrendous”. She said that she was shadowed by Jacqueline as she walked through the house. She described the degree of shadowing as being almost stalking. The doll was retrieved and returned to Iris.
38 Vivienne appeared to me to be less involved with Iris than Deborah. The reason for that was the distance between where Iris and Vivienne were living. That is not to say that their relationship was other than a loving mother-daughter relationship. She saw Iris about once a month. Under cross-examination she said that Iris never “grumbled” that she was not seeing her more often, and in that context, she said that Iris was not like that. I took the latter to mean that Iris was not someone who complained about her daughter not seeing her often.
39 The evidence which appears to me to be noncontroversial is that Iris had a loving relationship with her daughters, Vivienne, Deborah and Christine, and her daughters had an equally loving relationship with each other. Michael would appear to have been a relatively devoted and concerned son-in-law. For reasons which remain unclear to me, Iris apparently took a set against Jacqueline. It is unclear to me when that began, and the reasons for it. I can well understand that Iris became clearly upset when Jacqueline did not invite her to the scattering of Christine’s ashes, and if she was told of the conduct of Jacqueline when Deborah went to Christine’s home to recover the doll, then that episode may well have also coloured her view of Jacqueline. I should add that Jacqueline denied that she behaved in a manner described by Deborah.
40 There was more than a hint in the evidence of Vivienne and Deborah that they also do not like Jacqueline. It was not stated so expressly, but there is an odour in their affidavits and in the tenor of their oral evidence to suggest that either they have individually come to that view, or they appear to have vicariously adopted Iris’s attitude toward Jacqueline.
The justification for Iris’s attitude
41 When I look down the family line, what I see emerging from the evidence is that Christine reconciled with Iris at some stage. That reconciliation returned their relationship to a loving mother-daughter relationship. Michael was a relatively devoted and concerned son-in-law. All seemed to be well at that level. Again, for reasons which are unclear to me, Iris took a dislike toward Jacqueline. I think it is more likely than not that Jacqueline did have a reasonable relationship with Iris, consistent with the relationship which Christine and Michael had with Iris.
42 Mr McKenzie submitted that the testamentary statement attached to the Will is just plainly wrong. He submitted that I should accept that Jacqueline was not the disinterested and distant grandchild which the evidence of Deborah and Vivienne suggests was the case.
43 The mainstay of the case put by Vivienne and Deborah is the testamentary statement attached to the Will. Mr Shepherd submitted that what could be clearer than a statement drafted in such a definitive manner emphasising the view which Iris formed of Jacqueline and Jarrod. I am not convinced that the content of the testamentary statement is the starting point and the finishing point in this case.
44 I think it is more likely than not that Jacqueline did interact with Iris in the manner described in her first affidavit. I think it is more likely than not that she telephoned Iris and spoke to her. It is understandable why that relationship might have soured to some extent because of the two episodes regarding the scattering of Christine’s ashes and the recovery of the doll; however, neither of those incidents is referred to in the testamentary statement. What is at the heart of Iris’s stated view about Jacqueline and Jarrod is their demonstrated lack of concern for her welfare and their failure to sustain a relationship with her.
The application of the relevant test
45 Interestingly, in Scarlett, the plaintiff developed a relationship with her grandmother in the latter part of her grandmother’s life. She visited her grandmother. Vickery J described the relationship that developed as “a warm relationship”. The quality of their contact was described as intermittent, but occurring on a regular basis. The plaintiff, and another grandchild, were specifically excluded from taking under her Will whereas other grandchildren were to take.
46 It occurs to me that the relationship which Jacqueline had with Iris was more significant than was the relationship between the plaintiff and the grandmother in Scarlett. It commenced when Jacqueline was born and persisted, although it was likely to have been interrupted due to the fallout in the relationship between Iris and Christine, but it was then reinstated when Iris and Christine reinstated their relationship. Otherwise, Jacqueline’s interaction and contact with Iris appears to me to be consistent with, if not more obvious, than the relationship between the plaintiff and the grandmother in Scarlett.
47 The particular part of the observations made by Vickery J which is relevant is where he referred to a grandchild losing the immediate and continuing support of a parent who would normally be expected to have assumed direct responsibility for the grandchild’s advancement and welfare and what inheritance, or financial support, a grandchild might fairly expect from that parent for the grandchild’s future needs.
48 Quite obviously Jacqueline lost her mother. That loss resulted in a loss of immediate and continuing support of Christine for Jacqueline, and her own family. There is no evidence to suggest that Iris would have excluded Christine from a share of her estate. I think it is a fair assumption that she would have shared equally with Vivienne and Deborah, particularly given the evidence of Vivienne and Deborah of the relationship which Iris and they had with Christine. The loss of that inheritance in turn has resulted in a loss of financial support which Jacqueline might fairly have expected from Christine relevant to Jacqueline’s future needs.
49 In both Scarlett and Petrucci, it was said by Vickery J and Mandie J respectively, that it is permissible to look down the family line when considering a claim by a grandchild against the estate of a grandparent.
50 Looking down the family line, it occurs to me that Iris probably would have left a share of her estate to Christine, if not an equal share with Vivienne and Deborah. That would have placed Christine in funds which in turn are likely to have flowed on to her children, and in particular Jacqueline, given that I was informed that Jarrod discontinued his proceeding because he cannot establish any need. Therefore, applying the process of reasoning in the authorities I have reviewed, I consider that Iris, as a wise and just testator, owed Jacqueline a responsibility.
51 However, before finally deciding that point, I should deal with each of the factors in s91(4)(e)-(p). I have essentially done that in the summary of Jacqueline’s position, but I propose to go through each of those factors in turn in addition to that summary.
52 I have dealt with the family relationship which existed between Iris and Jacqueline in sufficient detail above.
53 The responsibility owed by Iris as a wise and just testator has also been dealt with in sufficient detail above.
54 The size of the estate is as I have summarised it above. There are no charges or liabilities over the estate.
55 I have summarised the financial resources of Jacqueline above. I have summarised the financial resources of Vivienne and Deborah below. There can be no doubt that Vivienne is in need. So is Deborah, but to a lesser extent than Vivienne.
56 Jacqueline has no physical, mental or intellectual disability. I have summarised the physical, mental and intellectual disabilities which are apparent in the families of both Vivienne and Deborah below.
57 I have referred to Jacqueline’s age above, and also the ages of Vivienne and Deborah.
58 Jacqueline has not contributed up of Iris’s estate. Nor has Vivienne. Deborah has to the extent that she cared for Iris from the time Iris moved into her home. Jacqueline has not contributed to Iris’s welfare, except to the extent that she interacted with Iris. Nor has Vivienne, except to the extent of interacting with her. Deborah has by caring for her after she moved into her home.
59 There were no benefits previously given by the deceased to Jacqueline or to Vivienne or Deborah.
60 Jacqueline was not being maintained by Iris. I have dealt with the basis upon which I consider that Iris owed Jacqueline a responsibility.
61 Travis has a responsibility to maintain Jacqueline. There is no other person who has a responsibility to maintain Jacqueline at present. Mr Shepherd submitted that one of the reasons why Jacqueline has no need is because she will take under her father’s will. I will say a little bit more about that later, but what is clear to me is that Michael is not in the best financial position himself, and there is some likelihood that his estate will be substantially diminished as he calls upon it to maintain himself.
62 The cross-examination of Jacqueline literally questioned every aspect of what she said in her first affidavit about her relationship with Iris, and her financial position. Parts of the cross-examination forcefully and uncompromisingly questioned Jacqueline’s character, and her conduct toward Iris. There was also an odour created by the cross-examination that she was not someone who was particularly interested in her broader family. I have dealt with that issue above. I am not satisfied that the picture which was attempted to be painted about Jacqueline has any merit.
63 In the end, and after considering the factors under s91(4)(e)-(p) of the Act, I am satisfied that Iris, as a wise and just testator, owed Jacqueline a responsibility.
64 In reaching that conclusion, I have not ignored the testamentary statement. It is not an overriding piece of evidence. It must be seen in the context of what the authorities and s91(4)(e)-(p) of the Act demand of the trial judge in assessing whether a deceased was a wise and just testator.
65 Deborah said that she read the statement to Iris three times before Iris signed it. She said that Iris understood the statement and was content to sign it. I accept that Iris had a view of her grandchildren at the time when she made her Will and the testamentary statement; however, that evidence does not persuade me that I should accept it at face value and treat it as superior to the evidence which I accept of the relationship which existed between Iris and Jacqueline, and the line of reasoning evident in Scarlett and the other authorities I have reviewed.
Vivienne’s position
66 Vivienne’s position can be summarised as follows:
· She is nearly sixty years of age.
· Her marriage irretrievably broke down in October 2012. She is now effectively single.
· Her sources of income are her salary as a nurse of $47,000 gross per annum and the rental of a property at Harrietville of $385 per fortnight.
· She has limited superannuation of $77,464.61.
· She has a mortgage of $140,799.56 on her home at Pottsville, New South Wales.
· She has five children. One of her children is mentally ill and requires hospital treatment. Vivienne pays the extra cost of supporting her daughter and her treatment to the tune of about $5,000 per annum. One of her other children lives with her while studying for a tertiary qualification.
Deborah’s position
67 Deborah's position can be summarised as follows:
· She is fifty-six years of age. She is married to Lennard.
· Deborah is a nurse, earning $34,500 gross per annum. Lennard is a fireman, earning about $80,000 gross per annum.
· Deborah and Lennard own their own home which they value at $535,000. It has a mortgage of $50,000.
· Deborah has superannuation of $65,000. Lennard has superannuation of $640,000.
· Deborah has suffered from the consequences of congenital spina bifida all of her life. She runs the risk of needing surgery to correct a deformity in one of her feet.
· Two of her daughters have suffered behavioural difficulties through their life and have been diagnosed with psychiatric disorders. Both have been prescribed appropriate medication to treat those disorders. One of her daughters has suffered very serious consequences of her psychiatric disorder. What appears to be clear is that both daughters will require financial support from Deborah and Lennard. Deborah estimates that the extra cost is about $10,000 per annum.
· Lennard suffers some degree of ill health, but it would appear that he is coping with his own health problems.
The competing moral claims
68 Mr McKenzie quite properly conceded that both Vivienne and Deborah have competing moral claims on Iris’s estate. He conceded again, quite properly, that the strongest moral claim is that of Vivienne. I have no hesitation in accepting that those concessions were properly made and accurately represent the conclusions that I should reach relevant to the competing claims.
69 Mr Shepherd submitted that if I was of the view that a responsibility was owed by Iris to Jacqueline, and that Jacqueline could demonstrate need, that there was no necessity for me to determine whether such provision should come from the provision made for Vivienne or Deborah. He submitted that I should simply make an order, and that whatever arrangements needed to be made as between Vivienne and Deborah should be left to them.
Jacqueline’s demonstration of need
70 Mr Shepherd submitted that if I was satisfied that Iris owed a responsibility to Jacqueline, that I should conclude that Jacqueline cannot demonstrate need.
71 Mr Shepherd produced a schedule of all of the assets and liabilities of Jacqueline and Travis. He submitted that their indebtedness was partly due to extravagance. He submitted that the purchase of two cars and the installation of a swimming pool demonstrated extravagance. Next, he submitted that Travis will return to work at some stage, probably on a similar income which will enable the family unit to be financially independent and secure. Next, he submitted that Jacqueline and Travis are in a situation which most couples with children find themselves in, that is, the purchase of a home which inevitably involves the acquisition of debt, so their position is really no different from anyone else. Next, he submitted that one of the items included in his schedule was the value of the house contents owned by Jacqueline and Travis valued at $100,000. All in all, he submitted that the schedule demonstrated that they are well off, or potentially well off, and that there is no reason to conclude otherwise than their position will improve in the years to come.
72 In addition to the foregoing, Mr Shepherd submitted that Jacqueline will take under Michael’s will. However, Michael is in a relatively poor financial position. The inheritance from his own father now stands at $250,000. He does not own a home. He earns an income of about $50,000 gross per annum as a forklift repairman. He has no other assets to speak of except for an old car, and the tools of his trade. It can hardly be said that he is drowning in riches which Jacqueline will benefit from a when he dies.
73 Firstly, I am not persuaded that Jacqueline and Travis have been extravagant. I do not consider that purchasing two cars, and indeed, running two cars and the installation of a swimming pool represents extravagance. It appears to me that Jacqueline and Travis considered that two cars and a swimming pool were within the range of their capacity to meet the further debt incurred in paying for two cars and a swimming pool.
74 Secondly, I accept that Travis will probably re-enter the workforce, but at the present time, Jacqueline and Travis are under some moderately serious pressure financially in meeting their commitments.
75 Thirdly, I think it is unrealistic to suggest that the house and contents valued at $100,000 are in some way an item which is realisable and will bring them $100,000 in cash. No doubt their house and contents are made up of everything from tables and chairs, crockery, cutlery and other similar items. The insurable value is not necessarily the realisable value on sale, but rather the replacement value.
76 I think Jacqueline has demonstrated need. I think Iris, as a wise and just testator, should have made some provision for her, given that she was not in a particularly sound financial position at the time when Iris died, and is in a worse financial position now that Travis is not working. In assessing what provision Iris should have made for her, I have balanced the strong competing moral claims of Vivienne and Deborah. I think that $75,000 represents adequate and proper provision for Jacqueline’s maintenance and support.
Other matters
77 In the course of the trial, I was informed by Mr McKenzie that Jacqueline’s costs are $45,000. Mr Shepherd informed me that Vivienne and Deborah’s costs are $96,000. I required an explanation from Mr Shepherd as to how the sum of $96,000 is made up and calculated. An affidavit was produced, sworn by Mr Boots, which did no more than demonstrate a schedule of costing with no explanation as to how that sum is made up and calculated.
78 Mr Shepherd applied to have the question of costs delayed until the delivery of judgment and the making of orders. I have decided to, firstly, deliver judgment and make the appropriate orders, and then to hear Mr McKenzie and Mr Shepherd on the question of costs. That question also involves whether Vivienne should obtain an order for costs when there was really no necessity for her to be joined as a defendant; and, secondly, whether an order for costs should be made against Jarrod for costs incurred by the defendants in defending the proceeding brought by him up until the time he discontinued his involvement in the proceeding.
79 I will now hear counsel on the question of the order that should be made, and the applications for costs.
Schedule of Exhibits
Exhibit A Email from David boots dated 28 February 2014 with attached client trust ledger Exhibit B Affidavit of Kathleen Pisano sworn 16 April 2013 Exhibit C Affidavit or Jacqueline Rooney sworn 23 July 2013 Exhibit D Affidavit of David boots sworn 20 August 2013 Exhibit E Affidavit of Deborah Gail Saunders sworn 1 October 2013 Exhibit F Affidavit or Jacqueline Rooney sworn 29 October 2013 Exhibit G Affidavit on Deborah Gail Saunders sworn in 18 November 2013 Exhibit H[12] Affidavit of Deborah Gail Saunders sworn 20 February 2014 Exhibit J Outline of evidence of Michael Francis Vincent Exhibit K Notice of Assessment for year ended 30 June 2013 of Jacqueline Rooney
Exhibit L Notice of assessment for year ended 30 June 2013 of Travis Rooney Exhibit M Affidavit of Deborah Gail Saunders sworn 20 February 2014 Exhibit N Affidavit of Vivienne Linda Dobell sworn 25 February 2014 Exhibit O Affidavit of David boots sworn 12 March 2014 Exhibit 1 Diagram of 9 Maggs Street, Croydon Exhibit 2 Taxation return of Jacqueline Rooney for year ending 30 June 2013 Exhibit 3 Taxation return of Travis Rooney for year ending 30 June 2013 Exhibit 4 Employment Separation Certificate of Travis Rooney dated 28 August 2013
Exhibit 5 Rate Certificate of 9 Maggs Street, Croydon dated 10 August 2012 Exhibit 6 Affidavit of David boots sworn 14 March 2014 [12]This is the same exhibit as exhibit M
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