Simons, Janina v Gorbal, Teresa Katarina
[2009] VCC 1448
•15 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL
FAMILY PROPERTY DIVISION
Case No. CI-08-04384
| JANINA SIMONS | Plaintiff |
| v | |
| TERESA KATARINA GORBAL | Defendant |
| (who is sued as Executrix of the Will of GREGORZ GORBAL (deceased)) |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 September 2009 |
| DATE OF JUDGMENT: | 15 October 2009 |
| CASE MAY BE CITED AS: | Simons, Janina v Gorbal, Teresa Katarina |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1448 |
| First Revision 17 November 2009 |
REASONS FOR JUDGMENT
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Catchwords: TESTATOR’S FAMILY MAINTENANCE – application by sixty-two year old daughter in respect of whom no provision was made in testator’s will – inadequate provision made by the testator in his will - Administration and Probate Act (Vic), s.91.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S J Gannon | Simon Parsons & Co |
| For the Defendant | Mr C A Connor | Browne & Co Solicitors & Consultants Pty Ltd |
| HIS HONOUR: |
1 This proceeding is brought pursuant to the provisions of Part IV of the Administration & Probate Act 1958 (“the Act”). It involves the disposition of the Estate of Gregorz Gorbal (“the deceased”) who died on 26 October 2007. At the time of his death the deceased left a Will executed on 22 November 2006 (“the Will”) in which he appointed his youngest daughter, Teresa Gorbal, to be the Executrix of his Estate, and bequeathed to her the following assets:
(i) All the deceased’s livestock, farm, plants, machinery and farm equipment; (ii) His right, title and interest in the property, together with the house and contents situate at the corner of Purvis Road and Mill Road, Yallourn North (“the house block”);[1] (iii) His right, title and interest in the property situate at Purvis Road, Yallourn North (“the farm block”);[2] (iv) The residue of his real and personal Estate. [1] Certificate of Title Volume 9578 Folio 345 - Lot 1 of Plan of Subdivision 146276G
[2] Certificate of Title Volume 9578 Folio 348 - Lot 4 of Plan of Subdivision 146276G
2 At the time of his death, the following children of the deceased survived him:
• Janina Simons, whose date of birth is 4 June 1947; • Teresa Katarina Gorbal, whose date of birth is 5 May 1952; • George John Gorbal, whose date of birth is 25 January 1946. 3 The Will contained the following clause:
“I declare that in making this my Will I have fully considered the competing interests of all my children and my said daughter Teresa Katarina Gorbal as being my constant carer and confidante for many years and has in my view full entitlement to my Estate as set out in this my Will. I have specifically excluded my daughter Janina Gorbal (also known as Janina Simons) and my son George John Gorbal as I believe they have been adequately provided for during my lifetime.”
4 In this proceeding, Ms Simons asserts:
(i) that at the date of his death the deceased had a responsibility to make provision for her proper maintenance and support; (ii) the Will did not make adequate provision for her maintenance and support; (iii) an order pursuant to the provisions of s.91 of the Act for the proper maintenance and support of Ms Simons. 5 There is no issue in the proceeding that at the time of his death the deceased had a responsibility to make provision for Ms Simons’ proper maintenance and support and that the Will failed to do so. The only issue which I am required to determine is the quantum of the maintenance and support which should be allocated to Ms Simons from the deceased’s Estate.
General Principles
6 The principles relevant to the present application may be summarised as follows:
[3] Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463
[4] Blair v Blair (2004) 10 VR 69, per Nettle JA at paragraph 43
(i) The Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than fond and foolish father.[3] (ii) The test to be applied is one of whether, and if so what provision, a wise and just testator would have thought it was his moral duty to make in the circumstances of the claimant.[4] 7 In determining whether adequate provision has been made for the proper maintenance and support of the claimant, a distinction is to be made between the meaning of the word ‘proper’ and the meaning of the word ‘adequate’. In Vigolo v Boston,[5] when commenting on the meaning of the word ‘proper’ Callinan and Heydon JJ stated:
“… It implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances … . The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”[6]
[5] (2005) 213 ALR 692
[6] at paragraph 114
8 It is clear that the question of whether the provision under consideration is adequate is qualified by the word ‘proper’.[7]
[7] Herszlikowicz v Czarny [2005] VSC 354, per Hargrave J, at paragraph 115
9 The issue as to whether adequate provision has been made must be determined by considering the facts and existing the eventualities which might reasonably have been foreseen at the date of the testator’s death, however the question of what order should be made is to be decided by reference to the facts existing at the time of hearing.[8]
[8] Prosser v Twiss [1970] VR 225, at 232
10 The question as to the way in which a wise and just testator would have acted is to be considered on the basis that the testator at the time of death was fully aware of all relevant circumstances, including reasonably foreseeable eventualities existing at the date of death, whether or not actually known to the testator.[9]
[9] Collicoat v McMillan [1999] 3 VR 803, at paragraph 37
The Value of the Estate
11 It is not in issue that the present assets and liabilities of the Estate are as follows:
• The house block which has been valued at $150,000. • One half of the farm block which has been valued at $100,000. •
One half share of land comprising of a road corner at Purvis and Mill Roads, Yallourn North, which is valued at $50.
• Balance of funds held in trust - $22,010.16. • Farm equipment which is valued at $6,500. • Cattle valued at $4,700. 12 The total value of the Estate is thus $286,960.16.
13 There is no issue that the liabilities of the Estate are as follows:
(i) defendant’s solicitors and counsel fees - $45,750; (ii) plaintiff’s solicitors and counsel fees - $50,000; (iii) valuation fees - $880; (iv) replacement costs of farm machinery - $2,600. 14 The net value of the Estate is thus $188,030.16.
The Issue of Proper Maintenance and Support
15 In determining the issue as to the level of “proper maintenance and support” to which Ms Simons is entitled, I am required to consider each of the factors set out by the provisions of s.91(4)(e) to (o). Section 91(4)(p) requires me to consider any other matter which I consider to be relevant.
16 In bringing the application, Ms Simons relies on two affidavits sworn 13 January 2009[10] and 19 March 2009.[11] In addition, Ms Simons relies upon an affidavit sworn by her brother dated 24 August 2009.
[10] The first affidavit
[11] The second affidavit
17 Ms Gorbal relies upon an affidavit sworn 19 March 2009 and further affidavits which were filed to establish the value of the Estate as follows:
(i) an affidavit of Ms Gorbal dated 10 September 2009; (ii) an affidavit of Simon Grey Reid sworn 10 September 2009; (iii) a further affidavit of Ms Gorbal sworn 9 September 2009. 18 Both parties gave evidence and were cross examined. George Gorbal also gave evidence on behalf of Ms Simons and was cross examined.
19 I now turn to consider the facts of the proceedings in light of the criteria as set out by s.91(4) of the Act.
Sub-section (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
20 At the time of his death the deceased resided together with Ms Simons in a house located upon the house block. Ms Gorbal resided in a house situated on a block of land immediately adjacent to that occupied by the deceased and Ms Simons.
21 Ms Simons is the deceased’s eldest daughter. She described her relationship with her father as never being a close one. She left the family home at an early age and took up residence in Melbourne. Although she returned to the family home for a short period during the late 1960s, she did not return to live in the Latrobe Valley until 2003.
22 Whilst Ms Simons gave evidence that throughout the years in which she lived either in Melbourne or in Wangaratta, she kept regular contact with her father, and that she would write to him regularly and ring him either once every week or once every two weeks, I am not satisfied that Ms Simons maintained a level of contact with her father to the degree described by her. I base this conclusion upon the letters which are Exhibits 1, 2, 5 and 6, the tone of which suggests that the contact between Ms Simons and her father was much less regular than that which was described by her. Equally, I am satisfied that it is not appropriate to regard Ms Simons as being estranged from her father. Were this to have been the case, I consider it to be unlikely that she would have returned in 2003, at the deceased’s request, to live with him in order to help and support him. In this regard, I am satisfied Ms Simons’ evidence that the primary reason for the limited contact which occurred between Ms Simons and the deceased was their degree of the geographical separation.
23 In 1984, the deceased sub-divided his farm into four lots. He gave one lot to his son, George, and another to Ms Gorbal. It was Ms Simons’ evidence that the deceased intended to sub-divide a further lot which was to be gifted to her but that, by reason of her continued residence in Melbourne, the sub-division never took place. Ms Simons’ evidence in this regard is supported by the evidence of Mr Gorbal and I accept that evidence.
24 During his life, the deceased provided Ms Simons with limited financial support. The only significant sum involved being approximately $3,000 which the deceased gave to Ms Simons in approximately 1981. However, both Ms Simons and Mr Gorbal gave evidence that the deceased had stated to each of them that it was his intention to leave the house block to Ms Simons upon his death. I accept this evidence.
25 Ms Simons moved back to the Latrobe Valley in September 2004 and took up residence with the deceased. She gave evidence that this occurred upon the deceased requesting her to come home to help him. In 2003, the deceased had been admitted to the Latrobe Valley Hospital after a fall. Ms Simons gave evidence that at that time the doctor managing the deceased had suggested that he should not be living alone and that it was this conversation, together with the deceased’s request for help that motivated Ms Simons to move in with her father. I accept this evidence.
26 Ms Simons said that when she moved into the house, the house required cleaning, which she undertook, and that she replaced most of the deceased’s manchester. She said she did general work around the property which included collecting and stacking firewood, cleaning and maintaining a vegetable garden. Although issue was taken in respect of some of this evidence, I accept it.
27 Whilst living with the deceased, Ms Simons did not pay rent. She did, however, pay for the electricity. The deceased paid the rates and both Ms Simons and the deceased shared the cost of food.
28 Upon returning to reside with the deceased in 2004, Ms Simons remained in the deceased’s house between September 2004 and approximately November 2005. She returned to the house in February 2006 and resided there with the deceased until his death. I am satisfied that her presence in the deceased’s household during these periods provided a real benefit to the deceased.[12]
[12] Although a precise period during which Ms Simons resided with the deceased between September 2004 and his death was disputed by Ms Gorbal, I accept Ms Simons’ evidence in this regard.
29 For most of her life Ms Gorbal lived either with or next to the deceased. I am satisfied that:
•
Ms Gorbal’s relationship with the deceased was closer than that of Ms Simons. Over the years during which she resided next to the deceased she assisted and supported her father as and when required, she was a good companion to the deceased and was regarded at the time of his death as a trusted confidant. I am satisfied that Ms Gorbal made a considerable contribution to the deceased’s life and lifestyle by the longstanding support which she provided to him;
•
Upon Ms Simons taking up residence with the deceased, the care provided by her to the deceased was more significant than that of Ms Gorbal, essentially by reason of the constant presence of Ms Simons in the household. Equally, Ms Gorbal continued to support the deceased by assisting him as and when required and acting as his principal driver.
Sub-section (f) – any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate
30 There are no other applicants to be relevantly considered. The deceased’s son, George Gorbal, has filed an affidavit in this proceeding stating that he does not intend to make any claim against the deceased’s Estate. There is no issue that the deceased had an obligation to both his daughters, but that the deceased’s Will did not make adequate provision for the maintenance and support of Ms Simons.
Sub-section (g) – the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject
31 I have previously dealt with the issues raised by s.91(4)(e). The net value of the Estate is the modest amount of $188,030.16 after taking into account all liabilities of the Estate, including legal fees associated with this proceeding.
Sub-section (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
Subsection (i) - any physical, mental or intellectual disability of any applicant or beneficiary of the estate
32 The position of each of the parties is as follows:
Miss Simons
33 Ms Simons is sixty-two years old and has no assets of significance. She presently lives in the house which was the deceased’s home located on the house block. Her income is derived by way of an invalid pension. She deposed that she suffered from the following conditions which had rendered her unfit for any form of employment since 2001:
ƒ osteoarthritis of the lumbar spine ƒ pain and swelling in her arms and numbness of both hands ƒ porphyria (a hereditary skin disease) ƒ epilepsy and hyperthyroidism.[13]
[13] Ms Simons relies on an affidavit from Dr Ann Kelmann, her treating general practitioner, in which Dr Kelmann expresses the opinion that Ms Simons’ medical condition is such that it restricts her ability to conduct normal daily activities such as shopping and undertaking general housework. Whilst I accept that Ms Simons’ medical state is such that it effectively precludes her from engaging in employment, having heard the evidence both of Ms Simons and Dr Kelmann, I do not consider that Ms Simons’ medical condition imposes restrictions upon her life and lifestyle to such a degree that they are relevant to the matters which I am required to consider under the provisions of the Act.
34 The income derived by Ms Simons from her disability pension is $569.90 per fortnight.
Ms Gorbal
35 Ms Gorbal is fifty-nine years old and is currently unemployed. She is undertaking a course of study which she should complete by the end of this year which will qualify her to provide aged care to elderly people accommodated either in nursing homes or in private dwellings.
36 Ms Gorbal described herself as quite healthy. Whilst she suffered from a condition which she described as a worn lower spine which required her to have chiropractic treatment, carpal tunnel syndrome of the right hand, some allergies and porphyria, there was no suggestion that these medical conditions would limit Ms Gorbal’s ability to be gainfully employed as an aged care worker once she gains the appropriate qualifications.
37 Ms Gorbal is the owner of a property consisting of a house at 795 Purvis Road, Yallourn North which is situated on a block of land just under two acres in size. Although the precise value of this property is not the subject of persuasive evidence, I am satisfied that its value is greater than that of the house block. The property is the subject of a mortgage of $25,000 which was taken out by Ms Gorbal in 2008 for the purpose of purchasing a motor vehicle.
38 I am satisfied that the financial needs of Ms Simons are significantly greater than those of Ms Gorbal. While Ms Gorbal is the owner of her house and land,[14] Ms Simons has no assets of any significance. The evidence satisfies me that whilst Ms Gorbal retains a capacity to work which it is likely will be exercised once she completes her present course of study, Ms Simons has little or no capacity for work having regard to her age and primarily the condition of her back and this situation will continue for the foreseeable future. Further, the evidence satisfies me that the house owned and occupied by Ms Gorbal is generally superior both in size and condition to the house located on the house block in which Ms Simons presently resides.
Sub-section (j) – the age of the applicant
[14] Which is subject to a modest mortgage taken out recently for the purpose of purchasing a motorcar
39 Ms Simons is aged sixty-two. I consider this relevant to the findings I have made as to the permanence of her incapacity for work.
Sub-section (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
40 Ms Simons returned to live with her father at his request in September 2004. Whilst she contributed to the deceased’s lifestyle during the period in which she resided with him between September 2004 and November 2005, and thereafter between February 2006 and the date of the deceased’s death in the manner I have previously described, I am not satisfied that Ms Simons made any contribution to building up the Estate of the deceased.
41 Ms Gorbal lived next to the deceased for most of her adult life. I accept that she supported her father during his life by providing him with assistance when it was sought in managing his property and that this increased to include personal assistance from which the deceased benefited in the latter years of his life. I am not satisfied, however, that the assistance provided by Ms Gorbal in this regard influenced in any way the value of the Estate.
Sub-section (l) – any benefits previously given by the deceased person to any applicant or to any beneficiary
42 The land upon which Ms Gorbal’s house is located was gifted to her by the deceased in 1984. The house now located on the property in which Ms Gorbal lives was built by her and her former husband. This matrimonial relationship ended in 1988, at which time Ms Gorbal reached a property settlement in which she acquired the full interest in the house and the property in which she presently lives, although at that time the property was the subject of a mortgage of some $47,000. At the time of the property settlement the deceased gave to Ms Gorbal a figure of between $10,000 and $12,000 which she applied to her debts.
43 I am satisfied that during her life Ms Simons received very little support from the deceased. Other than the payment to Ms Simons of approximately $3000 in 1981, I am satisfied that the evidence establishes that the only further benefit of any consequence which Ms Simons received from her father was that of residing rent free with him following her return to the deceased’s household in 2004. I accept, however, that the value of this benefit was extremely modest having regard to the fact that during this period Ms Simons paid for electricity, shared the cost of food with the deceased and provided the general assistance to the deceased in maintaining the house and household. This position is to be contrasted with that of Ms Gorbal who received from the deceased what I consider to be a substantial benefit in the form of a give of the title of the land upon which she subsequently constructed her house and where she now lives. Whilst it is difficult to assign a financial value to this benefit, I consider that the benefit is a significant one having regard to the time in Ms Gorbal’s life in which the benefit was provided and the opportunity which it gave her to establish, no doubt through her own hard work, the house and home which she presently occupies.
Sub-section (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
44 Whilst I do not accept that the deceased maintained Ms Simons to any significant degree prior to his death, it is clear that he provided her with her primary place of residence.
Sub-section (n) – the liability of any other person to maintain the applicant
45 Ms Simons is supported by the receipt of a Disability Pension. There is no suggestion that any other person has a liability to provide for or to maintain her.
Sub-paragraph (o) – the character and conduct of the applicant or any other person
46 Is it not suggested that Ms Simons was guilty of any disentitling conduct. I have previously made findings as to the support provided to the deceased by each of his daughters. There is no other conduct which I consider relevant to this matter.
Sub-section (p) – any other matter the Court considers relevant
47 Since the death of the deceased, Ms Simons has resided rent free in the house located at the house block. In addition, the outgoings with respect to the property, such as rates, have been paid by Ms Gorbal.
48 The value of the Estate is extremely modest. After payment of legal expenses the present value of the Estate is only marginally more than the value of the house block.
49 Ms Gorbal was described in the deceased’s Will as his constant carer and confidant for many years. These are strong words which attest to the relationship between Ms Gorbal and her father. The deceased did, however, recognise the dependency of Ms Simons upon him. It is not in issue that the deceased wished Ms Simons to continue residing in his house after his death. Ms Gorbal deposed that it was her belief:
“ … that this was his way of securing accommodation for Janina without placing the property in her name as he had no respect for her ability to handle money and believed she would probably lose the house if he willed it to her and he had full faith in me carrying out his wishes.”[15]
[15]
What Provision should be made for the Proper Maintenance and Support of
Ms Simons?50 In Petrucci v Fields,[16] Mandie J observed:
“The Court is not entitled to rewrite the will in accordance with its own ideas of fairness or justice. The Court must place itself in the position of the testator and consider what the testator ought to have done in all the circumstances of the case, treating him for that purpose as a wise and just, rather than a fond and foolish testator.”
[16] [2004] VSC 425 (29 October 2004)
51 When the deceased came to the task of deciding the provision he should make in his Will for Ms Simons, I am of the opinion that the matters that he should have taken into consideration were as follows:
(i)
Ms Simons had no assets to speak of and no likely capacity to earn an income. In the absence of bequest by the deceased of his house in accordance with the discussion which he had had with her, Ms Simons would have access to no form of housing other than public housing of the type in which she had recently resided.
(ii) In contrast to Ms Simons, Ms Gorbal:
ƒ resided in a house which was largely unencumbered; ƒ possessed a residual earning capacity ƒ had during her life been the recipient of a substantial benefit
provided to her by the deceased; being the gift of the freehold land
upon which she had built her house;(iii) Whilst during her adult life Ms Gorbal had provided considerably greater support and comfort to the deceased than that which was provided by Ms Simons, Ms Simons was not guilty of any conduct which disentitled her to adequate and proper maintenance and support.
52. In my opinion, a wise and just testator in the circumstances existing at the time of his death, would have made a provision in his Will to secure for Ms Simons a place of residence, having regard to his knowledge that the receipt by her of an Invalid Pension made it extremely unlikely that in absence of such a provision she would not be able to acquire a secure residence. In these circumstances, a wise and just testator would have wished to ensure that Ms Simons was placed by his Will in a position in which she acquired ownership of the house in which she was residing with the deceased at the time of his death, thus honouring the commitment previously given to her.
52 In the circumstances, I propose to make and order that Ms Simons is entitled to the house and land which is comprised by the house block, Certificate of Title Volume 9578 Folio 345 on Lot 1 of Plan of Subdivision 146276G, and that the deceased’s Estate and interest in the house block be transferred to her.
53 Having regard to the extremely modest quantum of the deceased’s Estate, I will hear counsel’s submissions as to costs and as to the final orders which should be made to give effect to the distribution which I have found to be appropriate in this matter.
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| In his Will dated 28 October 1992 he bequeathed the house block to Ms Simons and Mrs Gorbal; |
The deceased executed at least four wills referred that his original intention was that Ms Simons was to have the house block absolutely upon his, and the subsequent modification of this intention in the manner deposed to by Ms Gorbal
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