Tomamichel v McCann (No 1)
[2014] VCC 246
•13 March 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-13-03524
IN THE MATTER OF AN APPLICATION UNDER PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958
AND
IN THE MATTER OF THE WILL AND ESTATE OF COLIN EDGAR TOMAMICHEL, DECEASED
BETWEEN
| PAUL DOUGLAS TOMAMICHEL LYNDAL MAREE TOMAMICHEL-ARGAET and MAREE ELIZABETH McLAY | Plaintiffs |
| v | |
| HEATHER JEAN McCANN (who is sued as the Executrix of the Will of the late COLIN EDGAR TOMAMICHEL) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2014 | |
DATE OF JUDGMENT: | 13 March 2014 | |
CASE MAY BE CITED AS: | Tomamichel & Ors v McCann (No 1) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 246 | |
REASONS FOR JUDGMENT
---
Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Claim by daughter-in-law and grandchildren of the deceased – whether there were any additional and special factors of significance in their relationship to establish a responsibility – whether any provision should be made
Legislation Cited: Administration and Probate Act 1958, s91 (1) and (4)(e)-(p)
Cases Cited:MacEwan Shaw v Shaw (2003) 11 VR 95; Petrucci v Fields [2004] VSC 425; Scarlett v Scarlett [2012] VSC 515; Thompson v MacDonald [2013] VSC 150.
Judgment: Provision to be made for the first and second plaintiffs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr J Glover | Beaumont Lawyers |
| For the Defendant | Mr K Mihaly | Rose Lawyers |
HIS HONOUR:
Introduction
1 Colin Edgar Tomamichel (“Colin”) died on 13 October 2012. He was ninety years of age when he died. His wife, Madge, predeceased him. He is survived by his daughter, Heather Jean McCann (“Heather”); his two grandchildren, Lyndal Maree Tomamichel-Argaet (“Lyndal”) and Paul Douglas Tomamichel (“Paul”), and his former daughter-in-law, Maree Elizabeth McLay (“Maree”).
2 Colin’s last Will was made on 19 April 1995. The executors named in his Will were Madge and Heather. Heather is the surviving executor. Probate was granted to Heather on 14 January 2013.
3 In an affidavit sworn 24 January 2014, Heather, in her role as executor and trustee of Colin's estate, deposed to the composition of the estate. His estate is valued at $1,637,210.16, of which $800,000 is said to be the value of a property at 42 Margaret Street, Box Hill North. The balance of the estate comprises monies held in banking accounts, in shares and in cash.
4 Colin’s Will provided that Lyndal, Paul and Maree were to receive $90,000 as tenants in common in equal shares. The balance of his estate was left to Madge, and if she predeceased him, then the balance of his estate was left to Heather.
5 By an Originating Motion filed 9 July 2013, Lyndal, Paul and Maree apply for provision out of the estate for their proper maintenance and support pursuant to s91(1) of the Administration and Probate Act 1958.
6 Dr J Glover of Counsel appeared for Lyndal, Paul and Maree. Mr K Mihaly of Counsel appeared for Heather.
7 The following evidence was adduced at the trial:
· Lyndal, Paul and Maree gave evidence and were cross-examined.
· Heather gave evidence and was cross-examined.
· The plaintiff’s Court Book (“CB”) was tendered by consent as a joint court book. It comprises pages 1-259: Exhibit A.
The basic facts/issues
8 Maria married Doug Tomamichel (“Doug”) on 14 June 1975. Doug died suddenly on 11 March 1981 when he was only 27 years of age. He died from complications of food poisoning. At the time of his death, Lyndal was 22 months old, and Maree was heavily pregnant with Paul.
9 Maree married Ken McLay (“Ken”) in 1983. Two children were born of their marriage: Robert, who was born in September 1984, and Hayley, who was born in November 1987. Lyndal and Paul were treated by Ken as members of the McLay family.
10 Maree and Ken remain happily married. Ken is in employment. Maree is no longer in employment. Lyndal is married and living in Sydney. Her husband is in employment. She is not. She has two young children. Paul is engaged to Karina. Both Paul and Karina are in employment. They will marry in March 2014.
11 Dr Glover conceded that there was no obligation on a deceased grandparent to make provision for the maintenance and support of a grandchild simply by virtue of the relationship of grandparent to grandchild. However, he submitted that the untimely death of Doug in 1981 constitutes an “additional or special factor” which brings Lyndal and Paul within the category of persons for whom Colin ought to have made provision.
12 Dr Glover submitted that in relation to Maree, that she is the former daughter-in-law of Colin. He, as a wise and just testator, should have made provision for her on two bases: firstly, because she is the widow of Doug, and, secondly, that she was in a special relationship with Colin throughout his life. He pointed to the fact that Colin made provision for Maree in his Will, and referred to her in his Will as his daughter-in-law, and not as his former daughter-in-law.
13 Mr Mihaly submitted that the claims by Lyndal, Paul and Maree must fail. Essentially, he submitted:
· Colin exercised freedom of testation in the making of his Will and in the disposition of his estate.
· He was a wise and just testator, because he very likely took into account the fact that Maree had remarried, and that Lyndal and Paul were part of the McLay family and were cared for in all respects, including financially.
· If I found that Colin owed Maree, Lyndal and Paul a responsibility and that he had breached his moral obligation to make provision for them, then they were unable to prove need.
The relevant principles of law
14 I have reviewed a number of authorities which deal with the responsibility of grandparents to grandchildren and in-laws to a daughter-in-law. I propose to limit my reference to the guidance provided in those authorities to three 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 and a daughter-in-law.
15 The first of those decisions is MacEwan Shaw v Shaw,[1] in which Dodds-Streeton J observed:
[1](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.” [2]
[2]at [216-222]
16 In Petrucci v Fields,[3] 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.”[4]
[3][2004] VSC 425
[4]at [64[-[66]
17 In a similar vein in Scarlett v Scarlett,[5] Vickery J reviewed a number of authorities, including MacEwan Shaw and Petrucci, and then observed:
[5][2012] VSC 515
“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.”[6]
[6]at [101]
18 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.[7]
[7]Scarlett v Scarlett (supra) at [114]
Maree’s position
19 Maree swore two affidavits in this proceeding. Her first affidavit was sworn on 4 September 2013.[8] In substance, it sets out her relationship with Doug before and after they were married, her circumstances in between the death of Doug and her marriage to Ken in 1983, a history of her financial circumstances and her relationship with Colin and Madge.
[8]CB 19-94, although, pages 19-34 comprise her affidavit with the remaining pages comprising exhibits
20 Although Mr Mihaly challenged some aspects of the matters deposed to by Maree, it went rather more to Maree’s life after she married Ken, and the financial stability which she has enjoyed since 1983.
21 I accept without reservation that Maree maintained a relationship with Colin and Madge after Doug died and after she married Ken. I accept the matters deposed to by her in that respect in her first affidavit and in her second affidavit, sworn 15 January 2014.[9]
[9]CB 165-177
22 Maree was in the workforce from time to time when it fitted in with her commitment to raising her four children. She is not currently working. It was my impression that she has not worked for some years. She is entirely dependent upon Ken’s income for her maintenance and support.
23 Ken is sixty-two years of age. He is in full employment. He works for Lend Lease. The actual work he undertakes for Lend Lease is with Yarra Valley Water. He earns $67,000 gross per annum. He has superannuation of approximately $250,000.
24 Maree and Ken own a house in East Doncaster. It has a market value of approximately $700,000 to $750,000. The last rate notice places a value on it of $635,000. They own an investment property in Balwyn which has a market value of approximately $550,000. The last rate notice places a value on it of $505,000. They receive a rental of $400 gross per week from it. They estimate that on sale it will attract about $80,000 in capital gains tax. Ken received $112,000 from his own mother’s estate which they have retained.
25 At the time when Maree swore her first affidavit she had saved $33,000 for the purpose of funding Hayley’s wedding in November 2013, and Paul’s wedding in March 2014. In addition, Maree anticipates requiring significant dental work at a cost of $20,000. Maree and Ken have planned a 30th wedding anniversary holiday, which she estimates will cost $4000.
26 The impression I have from the matters deposed to by Maree is that she and Ken and their children have not lived an extravagant lifestyle, but rather a fairly frugal lifestyle where they have lived well within their means. Although they own their own home, have an investment property and cash reserves, what they have will probably not enable them to fund a similar level of lifestyle when Ken retires. Inevitably, they will need to reduce their spending significantly and probably liquidate some of their assets in order to better fund their retirement.
Lyndal’s position
27 Lyndal swore two affidavits in this proceeding. Her first affidavit was sworn on 3 September 2013.[10] In substance, it sets out her personal circumstances and her relationship with Colin and Madge, and in particular, with Colin.
[10]CD 95-113
28 In a similar manner, Mr Mihaly challenged some aspects of the matters deposed to by Lyndal, but it went rather more to her personal circumstances and the financial stability which he presently enjoys.
29 I accept without reservation that Lyndal maintained a relationship with Colin and Madge, and in particular, with Colin. I accept the matters deposed to by her in that respect in her first affidavit and in her second affidavit, sworn 15 January 2014.[11]
[11]CB 178-179
30 Under cross-examination, Lyndal was asked whether her relationship with Ken was in all respects consistent with a relationship of a father and daughter. She said that it was not of that quality. She said that she treated Ken as her stepfather. If she needed anything of substance it was her mother who she approached and not Ken. I observed that when she was challenged about her relationship with Ken that her demeanour in the witnessbox changed somewhat. She seemed to stiffen and I observed that she was emotionally affected in her description of Ken as her stepfather. I was left with the impression that there was not the closeness in that relationship of a father and daughter. Paul reacted in a similar fashion and gave similar evidence.
31 Lyndal is thirty-four years of age. She is married to Darren. They have two children, who are six and four years of age respectively. The eldest child is attending school full-time. The youngest child will attend school next year. Lyndal is not currently working. She has devoted her time to raising her two children, and no doubt running the family household.
32 Darren is approximately thirty-six years of age. He is in full employment as a service manager for Gardner Denver. He earns approximately $104,266 per annum. He has superannuation of $58,000. Lyndal has superannuation of $29,000.
33 Lyndal and Darren own a townhouse in Nunawading. It has a market value of approximately $515,000. It is mortgaged to the extent of $188,000. Lyndal and Darren currently live in Sydney. They rent a house in Sydney for $430 per week. They will return to Melbourne shortly. The townhouse in Nunawading is short on accommodation for a family of four. Their financial resources may not extend to being able to buy a family home without incurring significant debt.
Paul’s position
34 Paul swore two affidavits in this proceeding. His first affidavit was sworn on 3 September 2013.[12] In substance, it sets out his personal circumstances and his relationship with Colin and Madge, and in particular, with Colin.
[12]CB 114-118
35 I accept without reservation that Paul maintained a relationship with Colin and Madge, and in particular, with Colin. I accept the matters deposed to by him in that respect in his first affidavit and in his second affidavit, sworn 3 January 2014.[13]
[13]CB 202-203
36 Paul is thirty-two years of age. He is in full employment. He works as a spray painter for Harvey Body and Custom in Mitcham. He earns approximately $65,000 gross per annum. He is engaged to be married to Karina. Karina is in full employment. He did not disclose her income in either of his affidavits. He has purchased a home with Karina in Lilydale. He did not disclose the purchase price in either of his affidavits, but it is mortgaged to the extent of $405,000. He has a car loan of $6,000, a credit card debt of $10,000, and he has personal loan of $23,000.
37 Paul gave very much the same evidence as to Lyndal regarding his relationship with Ken. I also observed him to also visibly change in his demeanour when under cross-examination on that subject. I was left with the same impression of his relationship with Ken as I described in connection with Lyndal.
The factors pursuant to Section 91(4)(e)-(f)
38 I have dealt with each of those factors in my outline of the position of each of Maree, Lyndal and Paul. However, I will only say a little bit more about each of these factors.
39 The family relationship between Maree, Lyndal and Paul is an obvious one and is set out in their affidavits. As I have already remarked, I accept what they say in their affidavits without reservation.
40 I do not accept that Colin had a responsibility to Maree, but for reasons set out below, I think he owed a responsibility to Lyndal and Paul.
41 The size of the estate is not inconsiderable. I have referred to that above.
42 I have set out the financial resources of Maree, Lyndal and Paul. They are not particularly well off. Maree and Ken have assets which will enable them to fund their retirement, but obviously their standard of living will be reduced when they retire when they are no longer able to rely upon Ken’s income. In relation to Lyndal and Paul, they are in the early part of their lives when their liabilities are at their most onerous. They are obviously in need of assistance financially.
43 Paul is the only one at risk of developing a disability. There is a possibility that the dangerous chemicals to which he is exposed in his work as a spray painter may expose him to a lung disorder in the future. However, the evidence of Dr Collins, pathologist, in that respect does not put it any higher than a possibility.[14] I accept that he has suffered ill-health recently, which may demonstrate the necessity to leave his current employment and retrain.
[14]CD 211-214
44 I have dealt with the ages of Maree, Lyndal and Paul above.
45 There is no evidence that Maree, Lyndal and Paul built up the estate of Colin in any respect. They were concerned for his welfare. Maree took steps to assist Colin domestically, and was quite obviously concerned about the level of care which was available to him after he took up residence in a nursing home. Lyndal and Paul were also concerned for his welfare, but it would appear that it was limited to visiting Colin and providing him with company.
46 There is no evidence to suggest that Maree, Lyndal and Paul have been maintained by the deceased. He certainly assisted them financially from time to time, but that assistance can hardly be elevated to maintenance.
47 In a domestic sense, the spouses of Maree, Lyndal and Paul have a liability to maintain them, as do they correspondingly. I do not think this factor is overly relevant.
48 I will deal with the character and conduct of Heather separately. Otherwise, there is no issue regarding the character of Maree, Lyndal and Paul or their conduct referable to Colin.
49 As far as there being other matters for the Court to consider, I will deal with the question of any special relationship below.
Heather’s conduct
50 Maree made a number of allegations about Heather’s conduct relevant to Colin’s residence in a nursing home. The thrust of the cross-examination of her was that she allowed Colin to be accommodated in a shared room with other persons whose behaviour reduced Colin’s quality of life, and otherwise that the domestic arrangements in the nursing home were questionable, and again reduced Colin’s quality of life.
51 Although the foregoing summary is very general, the substance of the allegations put to Heather under cross-examination are those contained in Maree’s affidavits.
52 The point that was sought to be made through the cross-examination is of little or no relevance to the matters which I must determine. To the extent that I need to make any such findings, I do not accept that Heather was careless in the manner in which she managed Colin’s affairs while he was a resident in the nursing home. I think the allegations made were of doubtful relevance in any event.
53 Dr Glover submitted that the relevance of Heather’s conduct is of importance given s91(4)(o) which requires the Court to consider the character and conduct of the applicant “or any other person”. He submitted that if I found that Heather was guilty of conduct which interfered with Colin’s quality of life, then that availed Maree, Lyndal and Paul of evidence going to proof of an additional or special factor of significance which I have dealt with below in some detail. For reasons which are now plain, I do not need to deal with that issue.
A special relationship?
54 Dr Glover submitted that the quality of the relationship which Marie, Lyndal and Paul had with Colin to which they have deposed in their affidavits is sufficient to satisfy the principle enunciated in the authorities.
55 Mr Mihaly submitted that the position of Maree, Lyndal and Paul is easily distinguished from the peculiar facts in the authorities I have referred to. He submitted that there was nothing special in their relationship with Colin. What relationship they had might have been close, but that is not adequate to satisfy the principle enunciated in the authorities.
56 I think there is some merit in the submission made by Mr Mihaly, but it is not overwhelming. The distinction becomes readily apparent upon an examination of the peculiar facts of Scarlett:
· Margaret Gilmour had two sons, Ian and Gregor.
· Ian married a second time. Tania, the plaintiff in the proceeding, was born of that relationship.
· When Ian’s second marriage failed, he sold a house which he owned. He moved to Maroochydore in Queensland and commenced living with his father on a farm.
· Ian contributed a substantial proportion of the proceeds of sale of his house into the farm, and he borrowed other monies. His father would not have been able to own and operate the farm without those contributions.
· Ian’s father died in 1992. He left the farm to Gregor. Ian was left with no assets of any significance. He resorted to drinking. He died in 1995 when he walked into the path of an oncoming car. Tania received $52,000 compensation from the Transport Accident Commission as her entitlement as a dependent.
· Margaret Gilmour died in 2009. She made no provision for Tania in her will.
· Tania developed a relationship with Margaret Gilmour in early 2005, and after she first obtained a drivers licence. She developed a warm relationship with Margaret Gilmour.
57 Tania succeeded in her claim. Vickery J considered that the claim should succeed for the following reasons:
“I am satisfied that the Tania had a strong relationship with the Deceased during the last four to five years of her life until her death in November 2009. However, it was not a dependent relationship. As such, I am of the view that a wise and just testator would not have been bound to make any provision for the immediate needs of a grandchild in Tania’s position.
Nevertheless, Tania, being 23 years of age at the time of the Deceased’s death did not have the resources to establish herself in life, and this remains the case. As such, Tania is in a position of clear need for some financial support, so that she can complete her education and have a fund to build upon and provide her with a measure of long term security to embark upon her adult life.
These needs on their own would not have taken the case out of the usual position of many young adult grandchildren sufficient to give rise to a responsibility in the grandparent to make some provision for the grandchild’s future.
There are however in this case additional and special factors of significance which take it out of the ordinary.
I am of the view that a wise and just testator in the position of the grandmother would, looking at the family line constituted by Tania’s father, Ian, and Tania herself, and considering the early loss of her father who I infer at the time of his death was penniless, conclude that she had a responsibility in the particular circumstances to make some provision for the grandchild’s future needs.
The responsibility arises after taking into account the following factors:
(a)Without some testamentary assistance, Tania, in this case will more than likely not be able to set herself up in life for herself. She has lost any possibility of financial support from her father;
(b) The fact that Tania’s father Ian, prior to his death, had given significant personal and financial support to his father Ronald Scarlett, the former husband of the Deceased, which included the contribution of his principal capital asset being the proceeds of sale of his former residential property and loan funds from a bank;
(c) The fact that, following the falling out between them, Ian did not inherit anything from his father, leading to the position that there was no possibility of the Tania inheriting anything of value from her father; and
(d) The fact that Ian’s brother, Gregor, had inherited the bulk of his father’s estate ought to have lessened the burden of any moral obligation imposed on a wise and just testator in the position of the Deceased to gift most of her estate to him.
In this context, according to prevailing community standards and as a matter of moral responsibility to her, the grandmother ought to have made some appropriate provision for Tania.”[15]
[15]at [110-116]
58 I do not propose to look at the peculiar facts of Petrucci,[16] because it bears out a similar basis in its facts justifying a finding that there were additional and special factors of significance which, when weighed into account, favoured a conclusion that provision should be made for the claimants.
[16]Thompson v MacDonald [2013] VSC 150 is a similar example to Scarlett and Petrucci (supra)
59 I interpret the expression used by Vickery J of “additional and special factors of significance” to mean factors which are distinguishable from a normal relationship between a grandchild and a grandparent, and a daughter-in-law and a father-in-law. There must be some quality in the relationship which demonstrates such a distinction, otherwise, if all a claim needs is a close relationship, then it will mean that most claims by grandchildren and daughters-in-law will invariably succeed. That simply cannot be so, and I think that is demonstrated clearly in the authorities.
60 Dr Glover submitted that the quality in the relationship of Lyndal and Paul with Colin, which constitutes the additional and special factors of significance, are essentially as follows:
· There is no reason to assume that if Doug had survived that he would have had a relationship with Colin any different to the closeness of the relationship which Heather, Marie, Lyndal and Paul had with him. Indeed, there was nothing in the evidence to suggest that during Doug’s short life there was anything untoward in his relationship with Colin.
· If the above assumption is a reasonable one, and I think it is, then it is also reasonable to assume that Colin would have made provision for Doug in his Will.
· Lyndal and Paul struck me as being thoroughly decent young people. I think, therefore, it is reasonable to assume that they would have had a close relationship with Doug.
· The foregoing leads me to also assume that if Doug had survived, he and Maree would have most likely made provision for Lyndal and Paul in their wills.
§ Lyndal and Paul have no certainty that Ken and Maree will make provision for them in their will, but I think it is a reasonable assumption that they will. However, what provision they may make will be divided amongst their four children; that is, Lyndal and Paul and their stepbrother and stepsister.
61 I think it is a reasonable assumption that the loss of their father has put Lyndal and Paul in the position that is similar to the position of the plaintiff in Scarlett, although the plaintiff in Scarlett had no other resources upon which she might be able to call, whereas Lyndal and Paul have assets and the likely support of Ken and Maree.
62 The question is whether Colin, as a wise and just testator, should have looked at the family line and determined that the loss of Doug had probably placed Lyndal and Paul in a financial position of such a kind that he had a responsibility in their particular circumstances to make some provision for their future needs.
63 I have considered all of the evidence, the relevant factors in s91(4)(e)-(o), the authorities which I have reviewed, and the submissions of Dr Glover and Mr Mihaly. The conclusion I have reached is that Doug’s death does constitute an additional or special factor of significance which Colin, consistently with prevailing community standards, should have considered as imposing a responsibility on him to make some provision for the future needs of Lyndal and Paul.
Maree
64 The conclusion I have reached is that Colin probably saw that Maree had remarried and was well cared for both emotionally and financially. Even if I found that there was a responsibility on the part of Colin to Maree, there is insufficient evidence, in my view, to demonstrate an abuse by Colin of that responsibility to make provision for her given her present emotional and financial circumstances.
65 It must be remembered that Ken is primarily responsible to Maree. That was probably something which Colin had regard to when making his last Will.
What provision?
66 In Scarlett, Vickery J considered that an assessment of what constitutes adequate provision for proper maintenance and support included the court’s general knowledge and experience of current social conditions and the measurement of adequacy by reference to what is proper according to accepted community standards, and furthermore, by taking into account the structure of the will and legitimate interests of Heather as the other beneficiary.
67 The evidence demonstrates that Heather is in a sound emotional and financial position. In addition to her present financial position, she stands to receive the bulk of Colin’s estate.
68 Lyndal and Paul are young people who are at the relative starting point of their adult life. It is a point in life where marriage, the purchase of a family home and the birth of children creates substantial financial pressures. I think that is very evident from the summary I have made of their individual financial and domestic circumstances.
69 In the exercise of my discretion I have taken into account all the matters which I have referred to above. I think that what is adequate, properly measured according to accepted community standards, is to make provision for each of Lyndal and Paul in the sum of $150,000 each. I have not distinguished between them. I do not think it is possible to do so, because while Lyndal described her assets and liabilities, Paul did not. He did not say whether he has any net equity in the house that he and Karina have purchased, nor did he describe Karina’s income. I have determined that a global approach is appropriate. Lyndal has net equity in her house, but is not working and has the responsibility to raise two children. Paul undoubtedly has net equity in his house, but a double income and is not yet assuming the responsibility to raise children. These are the factors which I have brought into play in determining what provision to make for each of them.
70 I should add that I have taken into account the relatively modest sum of $21,000 which Lyndal and Paul received through a common-law claim for damages made with respect to the wrongful death of Doug.
Orders
71 I order that in substitution for paragraph 4 of Colin’s Will there be the following:
“I give and bequeath the sum of $30,000 to my daughter-in-law Maree Elisabeth McLay; $150,000 to my granddaughter Lyndal Maree Tomamichel-Argaet and $150,000 to my grandson Paul Douglas Tomamichel.”
72 I am inclined to also order that the costs of the plaintiffs be paid out of the estate of Colin on a solicitor-client basis to be assessed by the Costs Court in default of agreement. However, I will hear the parties on the question of costs before pronouncing a formal order.
---
4
0