Schmidt v Piggott and Gray (as executors of the estate of John David Laird)
[1999] TASSC 137
•13 December 1999
[1999] TASSC 137
CITATION:Schmidt v Piggott & Gray (as executors of the estate of John David Laird) [1999] TASSC 137
PARTIES: SCHMIDT, Brigitte
v
PIGGOTT, Russell Howard
GRAY, Robert Edward
(as executors of the estate of John David Laird)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: M252/1997
DELIVERED ON: 13 December 1999
DELIVERED AT: Hobart
HEARING DATES: 17, 18 November, 3 December 1999
JUDGMENT OF: Wright J
CATCHWORDS:
Family Provision and Maintenance - Eligible person - De facto spouse - Three years' cohabitation - Principally financially dependent on testator.
Testators Family Maintenance Act 1912 (Tas), s2(1)(a) and (b), (3), (4) and (5).
Johnson v Scott [1989] Tas R 240, considered.
Aust Dig Family Provisions and Maintenance [294]
REPRESENTATION:
Counsel:
Applicant: P W Tree and D M Rees
Respondent: T J Williams
Solicitors:
Applicant: E R Henry Wherrett & Benjamin
Respondent: Ware & Otlowski
Judgment Number: [1999] TASSC 137
Number of Paragraphs: 25
Serial No 137/1999
File No M252/1997
BRIGITTE SCHMIDT v RUSSELL HOWARD PIGGOTT
and ROBERT EDWARD GRAY (as executors for the estate of John David Laird)
REASONS FOR JUDGMENT WRIGHT J
13 December 1999
The applicant, Brigitte Schmidt, applies for provision out of the estate of the late John David Laird who died in Hobart on 5 April 1996. The applicant claims to be the "de facto spouse" of the deceased within the meaning of the Testators Family Maintenance Act 1912 ("the Act").
By consent, on 2 February 1999, it was ordered that the question whether or not the applicant was the deceased's de facto spouse be tried as a separate issue and before any other issues. This question was listed for hearing in November 1999 and a large number of affidavits were filed. Much of the material in the affidavits was objected to as hearsay. Some of the challenged evidence was ruled inadmissible. Other parts of the evidence were admitted de bene esse and may require further consideration in accordance with written submissions prepared by counsel.
A starting point for consideration of the issue before me is the meaning of the statutory definition of "de facto spouse". The Act, s2 provides that:
"(1) …
'de facto spouse' means a person ¾
(a) who cohabited with another person of the opposite sex as the spouse of that other person, although not legally married to that other person, for at least 3 years immediately before the death of that other person; and
(b) who was principally dependent on that other person for financial support at the time of the death of that other person ¾
and includes a person who is to be treated as having been a de facto spouse by virtue of an order of the Court made under subsection (5).
(2) …
(3) A person may apply to the Court to be treated as having been the de facto spouse of a deceased person if that person would have been the de facto spouse of the deceased person but for the period during which the persons cohabited.
(4) The executor or administrator of the estate of the deceased person may apply to the Court for a determination that a person referred to in subsection (3) is to be treated as having been the de facto spouse of the deceased person.
(5) The Court may determine that a person is to be treated as having been the de facto spouse of another person if satisfied that, taking into account the circumstances of the case, it is proper to do so. "
The applicant gave evidence that she lived with the deceased for several years before his death, but for a period of nine weeks between September and December 1995, they lived apart following a dispute. She says that during that time the deceased lived at Taroona while she resided in rented accommodation at Lauramont Avenue in Sandy Bay. She says that they reconciled in December 1995 and resumed cohabitation.
On 15 November 1995, the deceased made his last will whereby provision for the applicant was substantially reduced from that contained in his earlier will. Paragraphs 12 - 19 inclusive of the applicant's principal affidavit, sworn on 19 September 1997, were as follows:
"12On or about the 15th November 1995 the deceased made his last will and testament during a period when there was still a rift in our relationship. However, by mid-December 1995 we had reconciled our differences when the deceased promised me that, if I returned to him, he would obtain a dissolution of marriage and marry me in the Spring of 1996. During the latter part of December 1995 I remained in the Lauramont property because of my obligations under the lease, but I spent time with the deceased at his rental accommodation in Taroona.
13On or about the 31st December 1996 the deceased and I were having dinner in Launceston and we were joined by the owners of a Launceston Bed & Breakfast. I was asked by the owners whether I would be interested being employed to run the Bed & Breakfast. The deceased was supportive of my wish to re-enter the hospitality industry.
14The deceased wished to move from his accommodation in Taroona and I then looked at a series of apartments initially to assist the deceased in the decision. After consultation with the deceased, I arranged through Mrs Ethnie Honey at Empress Towers in Battery Point for the rental of a unit. At the same time I managed to obtain an early release from my lease and I moved in with the deceased at the Taroona property pending the later move to Empress Towers.
15In or about February 1966 the deceased moved from the Taroona property to Empress Towers. I moved many of my possessions into the apartment including my refrigerator, my two sofas, my dining table, tea trolley, double bed, clothes and other small effects. During the month of January I commenced my position at the Launceston Bed & Breakfast. I received accommodation as part of my package deal and stayed in Launceston on my working days, but always returned to Hobart on my days off to the unit at Empress Towers. I was given an extra carpark, over and above the normal allowance of one carpark, for my own use. During this time we entertained together, we ate together, I always did the food shopping and other shopping for the deceased. We were in constant contact on the days I was working in Launceston and we looked forward to my days off together.
16On or about the 5th April 1998 I was contacted by Dr Robert Newton, who was the deceased's doctor, to go directly to the hospital as the deceased had become extremely ill. I later made all funeral arrangements, with assistance from Stephen and Drew Laird.
17The executors, after the personal effects of the deceased had been valued, requested me to vacate the apartment. I assisted in the distribution of the deceased's personal effects to appropriate members of the family in accordance with what I thought would have been the deceased [sic] wishes.
18At all times, apart from the eight or nine week period during which we separated, we regarded ourselves as man and wife. In all respects we have shared our lives, shared our accommodation, shared the performance of household duties although often largely under my control, we always gave each other mutual commitment and support. I regarded us as having a commitment to each other and a permanence to the relationship. I do not regard the time apart as detracting from that relationship. My accommodation in Launceston was not a permanent arrangement but rather a necessary step to regain my position in the hospitality industry. At all times my furniture was co-located with the deceased's in the Empress Towers unit, and our time together on my days off was spent as a couple.
19I regard myself as having been primarily dependent upon the deceased for financial support as at the date of his death. I did not contribute to the costs of provision of housing at Empress Towers. This cost was borne entirely by the deceased. The deceased further provided financial support to me in the provision of all entertainment and holidays, he also brought me many gifts and small luxuries; he paid our Telstra and Hydro account; the deceased also contributed towards the cost of our food and household provisions."
The applicant gave oral evidence that she received a salary of $28,000 gross per annum for her work at Bed & Breakfast in Launceston. She also received free board and comfortable accommodation.
She worked on a fortnightly roster which required her to spend eight days straight in Launceston. She would then return to live with the deceased at Empress Towers for six days. The deceased paid the rental due for the unit at Empress Towers in Hobart. Both of them liked dining out and would normally do so frequently ¾perhaps twice a week. The deceased used to pay the bill on such occasions. There was no clear evidence as to the deceased's income at this time. Evidence was given by the applicant that some years before this he had been in the habit of taking substantial and more or less regular amounts of money from the till of his business, Sport and Dive, but there is no satisfactory evidence that he was doing this whilst living at Empress Towers. The unit he was renting cost him $240 per week.
Mr Williams, counsel for the respondents, submitted that such evidence as there was as to the financial arrangements between them made it clear that the applicant was substantially self-supporting between at least December 1995 and the date of the deceased's death. He submitted that there was no basis in the evidence for a finding that the greater part of the applicant's financial requirements were met from the deceased's pocket. I agree with this submission. In my opinion, assuming the applicant's evidence to be correct, she was substantially self-reliant and was dependent upon the deceased for no more than about 30 per cent of her financial requirements. I turn now to consider the effect of the statutory provisions referred to above.
Assuming for present purposes that the deceased and the applicant had lived together as de facto spouses since 4 April 1993, it is necessary, firstly, to consider whether it can be said that they had done so "for at least 3 years immediately before the death of" the deceased.
Mr Tree, counsel for the applicant, submitted that the break in their relationship between September 1995 and December 1995 did not infringe this part of the statutory requirement. He pointed out that the definition does not require that the three year cohabitation period must be continuous. This, of course, is true and if continuous cohabitation were to be required, it could be said that an impossibly high standard would be set for an intending claimant. A few days away from each other or an overseas holiday could possibly destroy the continuity of cohabitation. Nonetheless, it seems to me that the emphasis placed on "at least" three years and the requirement that that period be "immediately" before the death of the alleged spouse makes it quite clear that a substantial interruption to the actual relationship by rift and separation is sufficient to take the applicant outside the definition in s2(1)(a). I regard the break in cohabitation between September and December 1995 as such a substantial interruption and it follows that I am unable to find that the parties cohabited for at least three years immediately before the deceased's death.
There is, of course, the additional requirement in s2(1)(b) that the applicant be shown to be "principally dependent" on the deceased "for financial support at the time of" his death. It was submitted that "at the time of" death is not directed to the actual instant of death and it was not seriously suggested that this meaning should be attributed to that phrase, but once it is acknowledged that some temporal width must be accorded to the expression, it is no easy task to say where the line should be drawn. That problem will, no doubt, require solution on a case by case analysis. However, in the circumstances of the present application, it must be said, and I so find, that the applicant was not "principally dependent" on the deceased at the time of his death. I take this provision to mean that the applicant must be more dependent upon the deceased for financial support than she is upon either herself or other people. Mr Tree argued that such a requirement is out of step with modern concepts of equal opportunity between the sexes but, in my opinion, such matters cannot displace the interpretation which the plain words of the section require. The Act, s3 requires an applicant to show that he or she "is left without adequate provision for his [or her] proper maintenance and support" which serves as a reminder that the legislation is not designed to allow an applicant to claim a fairer or more reasonable share from the estate than the will provides but, rather, to provide financial assistance to indigent or needy family members who should have been provided for by a just testator.
In my opinion, the applicant cannot bring herself within either s2(1)(a) or (b) of the Act. The further question therefore arises whether she can be treated as having been the de facto spouse of the deceased by the mechanisms provided in s2(3), (4) and (5). These are difficult provisions to interpret.
In the first place, there are absolutely no guidelines provided to the Court to indicate the minimum period of cohabitation which would justify a declaration that it is "proper" to treat a person who has lived with another as that other's de facto spouse. How is a judge to exercise a discretion to ameliorate an arbitrary statutory requirement of three years' cohabitation? A plainer example of the Court being invested with a simple "feel-good" discretionary power would be harder to find. The second reading speech in Parliament when this amendment was enacted throws no light upon this conundrum.
The difficulties do not stop there unfortunately. Section 2(3) deals with an applicant who has cohabited for less than three years with the deceased, but it says nothing concerning the additional prerequisite contained in s2(1)(b) that an applicant must be shown to have been "principally dependent" on the deceased. Does the Court have any discretion to dispense with or modify this requirement? There is no specific provision saying that it does.
Mr Tree argues that s2(5) provides the answer. He submits that this subsection stands apart from s2(3) and gives the Court a general dispensation power. In short, he submits the Court may disregard the s2(1)(a) and (b) requirements and make an order in favour of an applicant "if satisfied that, taking into account the circumstances of the case, it is proper to do so". The mind boggles. A woman who is in no way dependent upon a deceased testator and lived with him for a week before his death could be treated as his de facto spouse and become a legitimate claimant under s3A if this argument is valid. I cannot accept this. In my opinion, s3(3), (4) and (5), provide a progressive single structure or procedural code to be followed in circumstances where s2(1)(a) cannot be satisfied. The three year cohabitation period may be modified by this process but the "principally dependent" provision may not. To put it another way, on my interpretation, s2(5) may only be utilised to modify the cohabitation requirement ¾it provides no mechanism and invests the Court with no discretion to dispense with proof that the applicant was principally dependent upon the deceased for financial support at the relevant time.
No argument was addressed to the question whether or not s2(3) and (4) requires a separate preliminary application to be made to and determined by the Court before an intending applicant can apply under s3. Words suggestive of such a requirement are used in subs(3) and (4), but as the issue was not debated, it must be left for resolution to another day.
The old workers compensation legislation of 1927 discussed by me in Johnson v Scott [1989] Tas R 240, provides some interesting comparisons with the Testators Family Maintenance provisions now under discussion, but there are significant differences between the two Acts and the decisions in that case and the others referred to by counsel are really of no direct assistance.
In my opinion, I have no discretion to dispense with the s2(1)(b) requirements. The applicant was not principally dependent on the deceased at the relevant time and consequently she was not his de facto spouse within the meaning of the Act.
For completeness, I should add this. Although not satisfied that the applicant and the deceased cohabited as man and wife for the statutory period of three years, I am satisfied that they cohabited as de facto spouses, both before September 1995 and after December 1995 until the deceased's death. To reach this conclusion, I have accepted the substance of the applicant's evidence, as well as that given by the deponents whose evidence was read, or led, on her behalf. I have excluded that evidence taken de bene esse which consisted essentially of declarations by the deceased as to his perception of the relationship. It was common ground that he was a "womaniser" and was habitually unfaithful to his consorts, whether married to them or not. Additionally, it is plain that for some months before his death, questions had arisen as to whether the applicant would be able to claim against his estate if he died. His deceitful moral behaviour and his possible motivation to misrepresent his relationship with the applicant would clearly render his utterances highly suspect, but, in any event, they were, in my opinion, simply inadmissible as evidence as a matter of law.
Mr Williams submitted that the deceased's words were capable of assisting to give me an appreciation of the public perception of the relationship, but they really do nothing of the kind. They fall within no common law or statutory exception to the hearsay rule and they are really incapable of being seen as material conduct founding an inference. Their only potential value is as declarations of the truth and, as such, they are hearsay. As Mr Tree says in his written submission, "Absent truth, the conduct comprising assertions founds no inference". I agree with this.
In Johnson v Scott (supra) at 242, I said:
"Whether the relationship of man and wife exists involves a consideration of the whole of their interpersonal relationships including such factors as, a) permanence; b) genuine emotional support; c) commitment to each other; d) financial support where appropriate and e) an indication to the world at large that the relationship exists. (See per Young J, Weston v Public Trustee [1986] 4 NSWLR p407 and In the Marriage of Pavey (1976) 25 FLR 450 at p455)."
In Roy v Sturgeon (1986) 11 NSWLR 454 at 458, Powell J correctly pointed out that assessment of the existence of a de facto relationship must be made in light of numerous factors relating to the particular couple. He said:
"With respect, it seems to me that to attempt to dissect the phrase 'living together as husband and wife on a bona fide domestic basis' into discrete 'elements', and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular 'element' is, or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis …".
(See also Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677.)
The relationship between the applicant and the deceased was unusual in some important respects, but overall a mutual commitment and permanence was evident. Its duration, albeit with fluctuating intensity and lack of continuity, over a number of years, was an important element.
I am satisfied that over the greater part of the three year period immediately prior to his death, the applicant cohabited with him as his spouse and, if the requirements of s2(1)(b) could be dispensed with, this would be a proper case to exercise the discretion vested in the Court by s2(5) to treat her as his de facto spouse for the purposes of the Act.
However, as already explained, the statutory criteria prevent my making such a finding and her application must be dismissed.
2
1
1