Thorsen v Thorsen
[2024] VCC 1857
•26 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| FAMILY PROPERTY LIST |
Case No. CI-21-02437
IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
-and-
IN THE MATTER of the Estate of GARY FRANCIS THORSEN, deceased
| JENNY-ANN MARIE THORSEN | Plaintiff |
| v | |
| FRANCIS EDWARD THORSEN and JOHN WILLIAM THORSEN | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2024 | |
DATE OF JUDGMENT: | 26 November 2024 | |
CASE MAY BE CITED AS: | Thorsen v Thorsen and Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1857 | |
REASONS FOR JUDGMENT
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Subject:TESTATOR’S FAMILY MAINTENANCE
Catchwords: Testator’s family maintenance and provision – application by wife – sibling beneficiaries not opposed to relief sought by plaintiff
Legislation Cited: Administration and Probate Act 1958 (Vic), s90, s91; County Court Civil Procedure Rules 2018, r49.01
Cases Cited:Singer v Berghouse (1994) 181 CLR 201; Re Flavel; Flavel v Flavel [2020] VSC 19; Re Donateo [2021] VSC 792; Firth v Reeves [2019] VSC 357; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Saric v Vukasovic [2019] VSCA 57; Grey v Harrison [1997] 2 VR 359; Re Marsella; Marsella v Wareham [2018] VSC 312
Judgment: Family provision orders granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mattin of Counsel | Dawes & Vary Riordan |
| For the first Defendant | Mr T Davies, Solicitor | Faram Ritchie Davies |
| For the second Defendant | No appearance |
HIS HONOUR:
1Gary Francis Thorsen (“the deceased”) died on 22 July 2017 at age sixty-four. He was survived by his wife, Jenny-Ann Marie Thorsen (“Jenny-Ann”), who is the plaintiff in this proceeding.
2By his last Will and Testament dated 15 July 2017, the deceased did not appoint an executor. The Will provided that:
(a) Jenny-Ann, in effect, be given a life interest in the principal asset of the estate, 12 Isabella Street, Shepparton Victoria[1] (“Shepparton property”) registered to the deceased;
(b) upon Jenny-Ann deciding to sell the Shepparton property or her death, that the proceeds of the sale of the Shepparton property be divided equally between the deceased’s four siblings:
(i)Denise Elizabeth Corey;
(ii)Glen Michael Thorsen;
(iii)Francis Edward Thorsen (“Francis”), the first defendant;
(iv)John William Thorsen (“John”), the second defendant; and
[1]Certificate of Title Volume 7209 Folio 749: Exhibit G
(c) Jenny-Ann “has relinquished any money from the proceeds of the sale” of the Shepparton property.
3The Will was signed by Jenny-Ann.
4The Inventory of Assets and Liabilities dated 23 October 2020 provides that the estate is valued at $206,840.83. At the time of the grant of Letters of Administration to Jenny-Ann on 11 January 2021,[2] the estimated value of the Shepparton property was $191,000.00.[3]
[2]PCB 19
[3]Inventory of Assets and Liabilities dated 23 October 2020, Plaintiff’s Court Book (“PCB”) 22
5Jenny-Ann brings a claim against the estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”) for further provision from the estate in the form of the entire estate, including that the Shepparton property be transferred to her.
6Francis is sued in his capacity as a beneficiary of the Will, and stands in place of the administrator of the estate as first defendant, because of the circumstance that Jenny-Ann was granted letters of administration.[4]
[4]See Re Bull, deceased (No 2) [2006] VSC 226, per Byrne J
7The second defendant, John Thorsen, is a beneficiary whose interests are affected by the relief sought in this proceeding. John did not appear at the trial.
8Jenny-Ann seeks further provision by way of the whole of the estate of the deceased, subject to the payment of all just debts, funeral and testamentary expenses, to be held for her own use and benefit absolutely.
9Francis does not oppose the relief sought. Mr Davies on his behalf submitted that it was appropriate for the entire estate to be distributed to Jenny-Ann, and that Francis consented to orders proposed by Jenny-Ann to this effect.
10The other beneficiaries, Denise Corey and Glen Thorsen, do not oppose the relief sought.
The deceased’s Will
11The terms of the deceased’s will provide:
“My wish is that my wife Jennyann Marie Thorsen is to reside at the property, 12 Isabella St, Shepparton, Victoria, 3630, until she decides to sell the property, or dies.
Then the proceeds from the sale of the property will be divided equally between my siblings:
Denise Elizabeth Corey
John William Thorsen
Glen Michael Thorsen
Francis Edward Thorsen.
Jennyann Marie Thorsen has relinquished any money from the proceeds of the sale of 12 Isabella St, Shepparton, Victoria, 3630.”
12Although the will bears Jenny-Ann’s signature, her evidence included that she was asked to sign the will when she was in hospital and did not read it before signing. She had not been involved in any discussions as to the terms of the will and did not receive legal advice prior to signing it.[5]
[5]Affidavit of the plaintiff affirmed on 28 June 2023, paragraph [7]
Statutory framework
13The determination of an application for a family provision order under the Act is a two-stage process.[6] The Court must first be satisfied that the threshold requirements for the making of a family provision order under s91(2) are met.
[6]Singer v Berghouse (1994) 181 CLR 201 at 209-210
14In that regard, I accept that Jenny-Ann, as the spouse of the deceased, is an “eligible person” within the meaning of s90(f) of the Act.[7]
[7]Section 91(2)(a)
15Although undefended, the Court must be satisfied, on the basis of credible evidence, that:
(a) at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(b) the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of Jenny-Ann.[8]
[8]Section 91(2)(c) and (d)
16It is uncontroversial that the deceased owed his spouse a moral duty to provide for her. Francis accepts this.
17If satisfied that there is power to make a family provision order, the Court must then determine whether to grant a family provision order; and, if so, the amount of any such provision. It must take into account:
(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person;[9]
(b) the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person;[10] and
(c) the degree to which Jenny-Ann is not capable, by reasonable means, of providing adequately for her own proper maintenance and support.[11]
[9]Section 91(4)(a)
[10]Section 91(4)(b)
[11]Section 91(4)(c)
18In making a family provision order, the Court must have regard to:
(a) the deceased’s Will;
(b) any evidence of the deceased’s reasons for making the dispositions in his Will; and
(c) any other evidence of the deceased’s intentions in relation to providing for eligible persons.[12]
[12]Section 91A(1)
19Section 91A(2) of the Act lists a number of other criteria to which the Court may have regard.
20An order for provision must not provide for an amount greater than is necessary for the applicant’s proper maintenance and support.[13]
[13]Section 91(5)(b)
21The questions for the Court to determine in this proceeding are whether the Will made adequate provision for Jenny-Ann, and if not, in what amount should further provision be ordered.
Procedural History
22This application was commenced by Originating Motion filed 20 May 2021.
23A deed of family arrangement by way of a settlement agreement was executed on or about 29 August 2022 by the plaintiff, the first defendant, and the plaintiff’s siblings Denise Corey and Glen Thorsen. Each considered the Will made inadequate provision for Jenny-Ann and agreed that the residue of the estate including the property be transferred to Jenny-Ann as sole beneficiary. Despite indicating his agreement to do so, John has not executed the Deed.
24As a consequence of his refusal to sign the Deed, on 18 May 2023, John was joined as a second defendant to the proceeding, and the Court gave leave for Jenny-Ann to file for summary judgment.
25On 3 July 2023, Jenny-Ann issued a summons seeking summary judgment pursuant to r22.03 and 22.04 of the County Court Civil Procedure Rules 2018 (Vic). The summons was listed to be heard on 9 October 2023.
26Numerous unsuccessful attempts were made to serve John personally with various documents including the amended originating motion, summons for summary judgment and an affidavit in support sworn by Jenny-Ann on 28 June 2023 and its exhibits.[14] On 10 August 2023, orders were made permitting substituted service of the documents on John, which was effected on the same date.[15]
[14]Affidavit of Davina Angela Pugliese sworn 24 July 2023
[15]Affidavit of Davina Angela Pugliese sworn 6 October 2023
27John did not appear at the hearing of the summons on 9 October 2023. The Court considered that it was appropriate in the interests of the administration of justice that a request for assistance be made by the Self-Represented Litigants Case Managers of the County Court to the Victorian Bar, pursuant to the Pro Bono Barristers Court Referral Scheme dated 19 September 2018, for the purposes of appointing a barrister to act as an amicus curiae or “friend of the court”. This request was limited for the purpose of assisting the Court by:
(a) providing John advice on the proceeding brought against him;
(b) assisting John to notify the Court and the other parties as to whether he consents to, opposes, or does not oppose the relief sought; and
(c) (potentially) appearing for John at a (half-day) judicial settlement conference.
28On 20 November 2023, the Court received correspondence from the parties stating:
(a) a Pro Bono Barrister had assisted John;
(b) John indicated that he would sign the deed of settlement;
(c) the deed of settlement was emailed and posted to John on 15 November 2023; and
(d) upon receipt of the executed deed of settlement, the parties would be in a position to submit consent orders finalising the proceeding.
29On 28 November 2023, the Court received correspondence from the appointed pro bono barrister advising that he has been instructed by John that he intends to retain his own lawyer. A notice of appearance was never filed on his behalf.
30On 21 December 2023, the Court made orders by consent listing the proceeding for trial set down on 25 March 2024. The Orders made were served on John on 11 January 2024.[16]
[16]Affidavit of Dianne Joy Guy sworn 16 January 2024
31On 5 March 2024, the Court was informed that in the week commencing 25 February 2024, John underwent brain surgery to remove a brain tumour and that his recovery was expected to take 6 weeks. The Court ordered that:
(a) the trial listed on 25 March 2024 be vacated and the trial relisted to 23 July 2024; and
(b) the proceeding be listed for a directions hearing on 7 June 2024 for the purpose of confirming whether the proceeding is ready to proceed to trial, including whether a litigation guardian should be appointed for John.
32At the directions hearing listed on 7 June 2024:
(a) John failed to attend;
(b) the Court read an email from the Shepparton Magistrates’ Court dated 6 June 2024 indicating John contacted the court to advise that he was unable to attend the directions hearing listed on 7 June 2024 as he was unwell and still recovering from surgery;
(c) no party made submissions as to John’s capacity to manage his affairs;
(d) the Court noted his apparent capacity to provide instructions and receive advice from pro bono counsel in this proceeding, based on the email received by the Court from Pro Bono Counsel dated 28 November 2023;
(e) Francis indicated his position that Jenny-Ann, as the spouse of the deceased, is entitled to further provision for her proper maintenance and support in the amount of the entirety of the estate of the deceased; and
(f) orders were made maintaining the trial listed on 23 July 2024.
33A copy of the Orders made on 7 June 2024 was served on John.
34On 22 July 2024, John called the legal representatives for both Jenny-Ann and Francis notifying them that he is unable to attend the trial due to him having had surgery recently. Both parties’ legal representatives advised John to inform the Court of his intention.
35On 23 July 2024, the Court received a phone call from John indicating that he would be unable to attend the trial due to his ongoing recovery from surgery and need to supervise his son who has a disability.
36The Court informed John the trial would proceed in the absence of an adjournment application. To do so, he would need to submit an application either by email or letter to the Court or by appearing at the trial and making an application for adjournment.
37I am satisfied John is aware of the hearing, and that he was advised to, and did, seek independent legal advice.
38John did not appear on 23 July 2024, and, accordingly, the trial was conducted undefended.
39John was provided every opportunity to participate in the trial. While a concern was properly raised, the evidence available to the Court does not establish that he does not have capacity. The Court infers from John’s previous interaction with his solicitor and pro bono counsel, his recent correspondence with the Court and his capacity to care for his son that John has capacity to understand both the nature of the proceeding and the consequence of his failure to appear.
The evidence
40The evidence comprised:
(a) Jenny-Ann’s affidavit affirmed 28 June 2023, adopted as part of her evidence-in-chief;
(b) her oral evidence at trial;
(c) Francis’s position paper dated 4 March 2024, adopted as part of his evidence-in-chief; and
(d) his oral evidence at trial.
Relevant principles
41The discretion to make a family provision order is to be exercised:
(a) carefully and conservatively;[17]
(b) with deference to the terms of the testator’s will and his or her stated intentions; and
(c) according to prevailing community perceptions of the provision that would be made by a wise and just testator.
[17]Saric v Vukasovic [2019] VSCA 57 at paragraph [11] (per Tate, Niall and Emerton JJA)
42The community usually expects provision from available assets for partner.
43In Grey v Harrison,[18] Callaway JA, with whom Tadgell and Charles JJA agreed, explained:
“There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight. … .”[19]
[18][1997] 2 VR 359
[19]Ibid at 366-7 (emphasis in original)
44The Court’s role is to assess what is the least amount that a wise and just testator, wishing to leave all of his residuary estate to his children subject to a life interest in favour of Jenny-Ann, would nonetheless leave (albeit reluctantly) to her having regard to his strong moral obligation to provide for her.[20]
[20]Section 91(5)(a) of the Act; see Gorton J in Re Donateo [2021] VSC 792
The evidence
45A summary of Jenny-Ann’s evidence is as follows:
(a) she was born in November 1967;
(b) at the time she met the deceased in 1989, he had a problem with alcohol. She told him to come back to her when he had resolved these problems, which eventuated in 1999, and they moved in together. She married the deceased on 21 May 2002;
(c) neither she nor the deceased married previously or have any children;
(d) the deceased brought the property to the relationship, and Jenny-Ann and Gary lived there together from 1999. Jenny-Ann continues to live at the property;
(e) Gary’s health deteriorated in his final 10 years, during which Jenny-Ann cared for him. Prior to his illness Gary was Jenny-Ann’s main carer due to her significant mental health issues;
(f) she suffers from schizophrenia (2007) and PTSD (2007, with a flare-up in 2018). Her other health issues include chronic back pain due to arthritis, liver cancer (2000), bursitis in both hips and ongoing depression and anxiety;
(g) with no prospects of ever obtaining work, she is a disability pensioner without private health insurance;
(h) save for an NDIS package of up to $35,000 per year, there is no other person who is liable for her maintenance and support;
(i) she has around $250,000 in a term deposit and everyday bank accounts, superannuation of approximately $20,000, but no other assets save a 2006 Hyundai Getz motor vehicle.
46Jenny-Ann is aware that John is divorced and has four adult children, one of whom has Down’s syndrome and John is his carer. John has received $70,000 from his father’s estate. He suffered an acquired brain injury in a car accident of unknown severity, but functions independently and does not have an attorney or administrator acting for him.
47There is no evidence of any other competing need.
Did the deceased owe Jenny-Ann a moral obligation?
48Jenny-Ann bears the onus of proof, on the balance of probabilities, of the justification for the claim. Francis conceded that such a moral obligation is owed.
49Upon consideration of the factors referred to above, I am satisfied that Jenny-Ann is a person for whom the deceased had a responsibility to make adequate provision for her proper maintenance and support. I find that the deceased had a moral obligation to provide for Jenny-Ann’s proper maintenance and support as at the date of his death.
Does the Will make adequate provision for Jenny-Ann?
50The deceased’s Will notionally makes provision for Jenny-Ann by way of a life interest in the Shepparton property. Some doubt at least attends this proposition, due to the form of the Will expressing his testamentary intention in terms of a “wish” rather than a direction; and there are inadequate particulars in relation to arrangements for the property in the interim. Expressed in this form, his “wish” may not be enforceable.
51I find that the distribution of the deceased’s estate on this basis does not make adequate provision for Jenny-Ann’s proper maintenance and support. Even a valid life interest provides inadequate security and flexibility for a spouse of 15 years, particularly given the modest size of the estate, and where the evidence establishes an overwhelming need.
Should the Court make an order for further provision?
Mandatory factors
52In considering whether further provision should be made, the Court must take into account the factors s91(4)(a), (b) and (c), and s91A(1) of the Act.
53The Court must have regard to the deceased’s Will – it is the first mandatory consideration in s91A. It must also consider any evidence of his reason(s) for making the dispositions in the Will.
54The deceased’s Will contains a statement that Jenny-Ann has “relinquished any money from the proceeds of the sale of the property”. That is disputed by Jenny-Ann, and I place very limited weight on this statement having considered all of the evidence.
55In the absence of any evidence of well-founded reasons, or agreement with Jenny-Ann, to leave the entire estate to his siblings subject to a life interest, it is difficult to conclude that a wise and just testator would provide such a limited legacy for his wife, who has very significant financial need.
Section 91A(2) discretionary considerations
56I set out below my findings in relation to the relevant discretionary considerations under s91A(2) of the Act.
(a) any family or other relationship between the deceased and the claimant, including the nature and length of the relationship
57The deceased and the claimant were in a de facto relationship from 1999, and were married in 2002. They remained happily married as at the date of the deceased’s death, and the claimant cared for the deceased during the latter part of his life.
(b) any obligations or responsibilities of the deceased to the claimant, any other eligible person or beneficiary of the estate
58The deceased owed obligations and responsibilities arising as part of being a spouse for over 15 years.
(c) the size and nature of the estate
59The estate comprises the family home. The inventory in 2021 records the value of the property at $201,000.00.
(d) the financial resources, including earning capacity, and the financial needs of the claimant, any other eligible person or beneficiary of the estate at the time of the hearing and for the foreseeable future
60As set out above, the claimant has significant needs due to various health conditions. Although she has some assets, she has no capacity for employment and is a disability pensioner.
61John elected to allow the proceeding to go undefended, so the extent of any moral obligation owed to him or his financial needs is not able to be determined on the evidence before me.
(e) any physical, mental or intellectual disability of any eligible person or beneficiary of the estate
62Save for the claimant’s medical conditions, this factor is not relevant on the evidence available to the Court.
(f) the age of the claimant
63Jenny-Ann is 56 years old.
(g) any contribution of the eligible person to building up the estate or the welfare of the deceased or her family
64Jenny-Ann contributed to the welfare of the deceased as a loving wife, and cared for him during his illness over a ten-year period. She also paid $10,000 for a kitchen renovation in 2010.
(h) any benefits previously given by the deceased to the claimant, any other eligible person or any beneficiary
65The deceased provided financial benefits to Jenny-Ann by the provision of their home, and also cared for her before his own illness.
(i) whether Jenny-Ann was being wholly or partly maintained by the deceased before his death
66This factor is not relevant.
(j) the liability of any other person to maintain the eligible person
67This factor is not relevant.
(k) the character and conduct of the eligible person or any other person
68This factor supports the application for further provision.
(l) the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries
69The relief sought would result in none of the deceased’s siblings receiving any proceeds from the sale of the Shepparton property in accordance with the Will.
(m) any other matter the Court considers relevant
70Not relevant.
71Taking into account all of the above factors, it is appropriate for the Court to make an order for further provision to a spouse of over 15 years who cared for the deceased in the final decade of his life as best she could, and contributed to the estate in material respects. Jenny-Ann is a relatively young woman with modest assets and high financial need due to her various health conditions. All of the deceased siblings, save John, agree that an order for further provision is appropriate.
In what amount should provision be made?
72Jenny-Ann submits that as a wife, she was owed a high moral obligation on the part of the deceased, and that an appropriate amount of family provision is the entire estate. Having regard to the value of the estate and the length of the marriage, the deceased ought to have left his entire estate to her.
73McMillan J summarised the relevant principles in Re Marsella; Marsella v Wareham:[21]
“As a broad general rule, the duty of a testator is to provide a surviving spouse with the security of an appropriate home in which to live, a secure income and a fund to meet unforeseen contingencies, with an entitlement to independence, self-respect and autonomy.”
(citations omitted)
[21][2018] VSC 312, at [109]
74In all the circumstances, a wise and just testator would view the transfer of the family home as adequate and proper having regard to the relatively small size of the estate.
75The amount provides for an amount no greater than is necessary for Jenny-Ann’s proper maintenance and support, having regard to her health and need for stable, certain accommodation.
76The entire estate is appropriate provision for a partner who is in a state of significant financial hardship. It will secure the family home for her accommodation, and financial independence from the deceased’s siblings.
77It acknowledges Jenny-Ann’s limited financial reserves to meet her own needs, including her various medical conditions, her inability to earn an income and the uncertainty of her present accommodation having regard to the terms of the Will.
78Transferring the Shepparton property to her absolutely, together with her other cash assets, will provide her with no more than appropriate flexibility to deal with future contingencies.
Costs
79The Court has a broad discretion in family provision cases in relation to costs, and the appropriate orders generally depend on the overall justice of the case.[22]
[22]Singer v Berghouse, supra
80Jenny-Ann submitted that Francis should not enjoy the usual indemnity of a trustee of an estate. He has modest means, and the burden of bearing the estate’s costs of the proceeding personally would be very significant for him.
81In my view, the first defendant is entitled to an indemnity from the assets he seeks to protect. In the circumstance of Jenny-Ann having been granted letters of administration, she named Francis as a defendant in his capacity as beneficiary in order to make a claim against the estate.
82In terms of the justice of the case, Francis has acted properly and in accordance with his obligations having been placed in this situation. He has given due consideration to Jenny-Ann’s relationship with the deceased, her financial needs and the modest size of the estate. His conduct in signing the deed of family arrangement and supporting Jenny-Ann’s position in this proceeding was entirely appropriate. He has done nothing to disentitle him from the benefit of an indemnity; rather, his efforts to protect the assets of the estate by minimising legal costs have been frustrated by John’s refusal to execute the deed of settlement. In the context of the interlocutory history referred to above and need for a final hearing, his costs sought in the sum of $20,500 are modest.
83I will order that Francis’s costs of the proceeding agreed and fixed at $20,500 be paid out of the estate in accordance with the usual indemnity afforded a trustee in this situation.
84Jenny-Ann seeks an order that John pay her costs of the proceeding to be taxed on a standard basis in default of agreement.
85There can be little doubt that the conduct of John has unnecessarily prolonged the resolution of this dispute, which has given rise to the need for his joinder and ultimately the trial of the proceeding.
86The appropriate order reflecting the justice of the case is that John pay the plaintiff’s and the first defendant’s costs of the proceedings from the date of his joinder on 18 May 2023 on a standard basis, to be determined by the Costs Court in default of agreement.
87Otherwise, there will be no order as to costs between the plaintiff and the first defendant. Jenny-Ann did not seek an order that Francis pay her costs, which was appropriate in the circumstances of his joinder as a beneficiary of the Will.
Orders
88I make the following orders:
1.In lieu of the entitlement in the will, provision be made out of the estate of the deceased to the plaintiff by providing that, subject to the payment of all just debts, funeral and testamentary expenses (including the costs referred to in paragraph 3 below), the whole of the estate of the deceased be held for the plaintiff for her own use and benefit absolutely.
2.The property situated at and known as 12 Isabella Street, Shepparton in the name of the deceased, being all that land contained in certificate of title volume 7209 folio 749, be transferred to the plaintiff, Jenny-Ann Marie Thorsen.
3.The first defendant’s costs of the proceeding, fixed at $20,500, be paid out of the estate of the deceased.
4.The second defendant pay the plaintiff’s and the first defendant’s costs of the proceedings from 18 May 2023 on a standard basis, to be determined by the Costs Court in default of agreement.
5.No order as to costs between the plaintiff and the first defendant.
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