Unger v Sanchez

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7364 of 2008

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the estate of OBDULIA WOINARSKI, also known as JULIE WOINARSKI, deceased

BETWEEN

KATHLEEN JANET UNGER	Plaintiff
V
ELENA GONZALEZ SANCHEZ	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 November 2009
DATE OF JUDGMENT:	1 December 2009
CASE MAY BE CITED AS:	Unger v Sanchez
MEDIUM NEUTRAL CITATION:	[2009] VSC 541

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Testator’s maintenance – Plaintiff not a member of testator’s family – Plaintiff caring for testator and husband in later years of their lives – Close relationship akin to parent and child – Strong deserts – Applicant in comfortable financial position – Competing claim of defendant – Administration and Probate Act 1958 (Vic) s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Phillip Hamilton
For the Defendant	Dr C Hanscombe SC And Mr A P Dickenson	Bediaga Xavier & Ramon

HIS HONOUR:

Obdulia Woirnarski (known as “Julie Woirnarski”) was born in Spain in 1934. She was the seventh of nine children. In 1962, she left Spain to live in Australia. There she married Stan Woirnarski (“Stan”). The couple did not have any children. In 1967 they purchased, and moved into, their home at 358 Kooyong Road, Caulfield. They were neighbours of the plaintiff and her husband, who lived three doors away.

Stan died in 2002. By his will, he left the whole of his estate to his wife. Julie died on 5 July 2007, leaving a will dated 13 February 2001. By that will, she provided that, should her husband predecease her, the whole of her estate should pass to her sister Elena Sanchez (“Elena”), who is the defendant to these proceedings, with a direction that the defendant should divide her residuary estate among her brothers, sisters, nieces and nephews as she, in her absolute discretion, considered appropriate.

The estate of the testatrix was valued for probate purposes at $1,718,985. In these proceedings, the plaintiff claims that she is entitled to provision to be made out of her estate pursuant to Part 4 of the Administration and Probate Act 1958 (“the Act”). The plaintiff’s claim is primarily made on the basis that, during the last years of the lives of Stan and Julie, she adopted the role of carer and guardian to both of them, and that during that period, she formed a close personal relationship with them, so that they regarded her as their adopted daughter.

The plaintiff’s affidavit as to her relationship with the testator

The plaintiff in her affidavit has set out in detail the care and support which she gave both to Stan and to Julie during the later years of their lives. In these reasons, I shall summarise it, although the summary is, of necessity, quite detailed.

After Julie and her husband moved into their home in Kooyong Road, Caulfield, they became good friends with the plaintiff. However, in June 2000 the plaintiff’s relationship with Julie became more involved. At that time, the plaintiff had returned from a trip overseas. When she went to visit Julie and Stan, she found that their house was closed. Eventually, she ascertained that Julie had suffered a nervous breakdown, and was an inpatient in Caulfield Hospital. The plaintiff visited Julie in the hospital, and found that she was very anxious. Julie had not been told where her husband was, and she was not allowed to see him. The plaintiff, after some effort, found that he had been placed in a respite facility, which was in a very poor condition.

In her affidavit, the plaintiff states that both Julie and Stan were then in situations over which they had no control. They were very frightened, not knowing each other’s fate, and they needed help. Neither Julie nor Stan had any family in Australia. They were each fearful that social workers had taken over their lives. Accordingly, the plaintiff decided to intervene and assist her friends and neighbours. In the ensuing years, Stan and Julie became very dependent on the plaintiff for her help, advice and guidance. In turn, the plaintiff came to feel towards the elderly couple in the same way that she would have felt towards her own parents. Eventually, when Julie and Stan were able to return home, the plaintiff helped them nearly every day.

In July 2000, the defendant and her niece visited from Spain. In the course of that visit, Julie became very stressed, as her sister and niece wished to take her back to Spain. A social worker became involved, and also tried to persuade Julie to return to Spain. Ultimately, the defendant and the niece returned to Spain, and Julie remained in Australia with her husband. By then, the question of the administration of their financial affairs had arisen. In September 2000, Julie and Stan gave the plaintiff their powers of attorney. In December 2000, a social worker made an application for an administration order to the Victorian Civil and Administrative Tribunal (“VCAT”), but the tribunal directed her to withdraw it, leaving the plaintiff in charge of their financial affairs pursuant to the powers of attorney.

In February 2001, the plaintiff arranged for a solicitor, Paul Ryan, to visit Julie and Stan, so that they could make their wills. Two months later, in April 2001, Julie was re-admitted to hospital. The plaintiff visited her in hospital. On one occasion, she found Julie in a distressed state, and the plaintiff learnt that she had been strapped into her chair. The plaintiff insisted that the restraint be removed and then she investigated the incident. The plaintiff undertook discussions with the medical staff to resolve the situation.

In the meantime, a hearing was held at VCAT, at which a temporary guardian was appointed for both Julie and Stan. The temporary guardian, however, played little role in their affairs, which were left in the hands of the plaintiff. During that time, Stan received a lump sum payment from his pension, and the plaintiff obtained advice from a financial advisor as to the appropriate means of investing it.

While Julie was in hospital, she had an appointment at the Alfred Hospital in relation to her eyes. The plaintiff arranged for her to see the eye specialist, and as a result Julie underwent an operation for the removal of a cataract. After the operation, Julie was prescribed new medication, which caused her problems. The plaintiff became concerned as to the effect of the new medication on Julie’s state of health. She consulted with the medical staff of the Caulfield Hospital, and, at the urging of the plaintiff, the medication was changed. As a result, Julie improved, so that the plaintiff was able to take her out of hospital on trips to the shops and the like.

By this stage, Stan was in an aged care facility, Sheridan Hall. The plaintiff made arrangements for Julie to be discharged from hospital to Sheridan Hall. Julie was discharged from the hospital into the plaintiff’s care. The plaintiff was not contacted by the temporary guardian in relation to Julie’s release from hospital. Before she went to Sheridan Hall, Julie and the plaintiff spent some time at Julie’s house. Julie and Stan had specified that the house was not to be sold because they wished to keep it. The plaintiff had undertaken the responsibility to keep the house cleaned and maintained while Julie was in hospital, so that it was ready for occupancy by Julie and Stan if they were fit to do so.

At that time, Julie told the plaintiff how much she meant to Stan and her, and stated that if ever the plaintiff’s family or the plaintiff needed financial help in the future, she must come to them first. The plaintiff then conveyed Julie to Sheridan Hall, and helped her settle into her new residence. During that period, the temporary guardian had not visited Julie.

While Julie and Stan were in Sheridan Hall, the plaintiff visited them every day. She made sure that their clothes were in good order, and ensured that their personal needs were properly attended to. At the same time, she was trying to find suitable permanent accommodation for both of them. Social workers were visiting Julie and Stan, but the manager at Sheridan Hall asked them to leave, because they were upsetting Julie and Stan.

In July 2001, the plaintiff received a letter from VCAT, advising her that a new temporary guardian had been appointed. At that time, Julie had continuing health problems, and had follow up appointments at the Alfred Hospital in relation to Parkinson’s disease and her eyes. The plaintiff took her to those appointments. At the same time, during that period, the plaintiff received two emergency calls from Sheridan Hall, after Julie had had falls, in which she suffered minor injuries. The plaintiff continued to be concerned about Julie’s condition, and made an appointment for Julie to attend the Alfred Hospital on 22 August 2001. On that date, she was admitted to the hospital for observation. When Julie was discharged from the Alfred Hospital, she was again discharged into the plaintiff’s care, and returned to Sheridan Hall.

At that time, in the course of a discussion between Stan and the plaintiff, Stan told the plaintiff that Julie and he thought of the plaintiff as their daughter. He asked her if she thought it would make a difference if they adopted her. The plaintiff did not take the suggestion seriously, but Stan did. Later, when Julie joined them, the plaintiff told Julie and Stan that they did not need a piece of paper to say that they had adopted her, and that from that time on they should regard her as their adopted daughter.

In the meantime, the plaintiff had arranged accommodation for Stan at Clarence Court. When accommodation became available at that residence, she made all the necessary arrangements to move Stan from Sheridan Hall to Clarence Court. She settled Stan into his new accommodation, and had his room ready for his arrival. Stan settled in well at Clarence Court. The plaintiff attended “relatives’” meetings at the home each fortnight. By then, the plaintiff still had not had any contact from the temporary guardian appointed by VCAT. She continued to visit Stan and Julie every day, and to take them out twice a week, either together or separately.

In 2001, the plaintiff made applications to VCAT to appoint a guardian of Julie and Stan. Those applications were successful, and VCAT made orders in relation to Julie and Stan on 31 October 2001. The plaintiff continued to visit Julie and Stan each day, attending to any problems which might arise. She arranged for Stan’s tax return to be prepared, and arranged ambulance cover for Julie and Stan. The plaintiff organised a party for Stan’s birthday at Clarence Court. At that time, a room became available at Clarence Court, which was offered to Julie. However, Julie did not wish to move in there. She said that although she loved Stan, she did not feel she could cope with being in the same residence as him.

The plaintiff continued to visit Julie and Stan, and she took them out regularly for various outings. At Christmas 2001, the plaintiff held a Christmas dinner at her home, which Julie and Stan attended. In January 2002, Julie had a number of medical problems, and the plaintiff was busy organising medical care for her. On one occasion, Julie was taken by ambulance to the Alfred Hospital. The plaintiff joined Julie in emergency, and stayed with her until 4.30 am. She returned the next morning with fresh clothes and toiletries for Julie. During that stay in hospital, the plaintiff arranged for Julie to undergo some sessions with a psychologist. The plaintiff visited Julie every day in hospital, and took Stan to see her every second day. The plaintiff usually visited Julie before lunch, so that she could observe her treatments, and she remained with Julie until she had finished her lunch.

In late February 2002, Julie was transferred to the nursing home section of Caulfield Hospital. The plaintiff made the necessary arrangements for that transfer. When Julie was settled in, the plaintiff arranged for a physiotherapist to attend her. The plaintiff took Stan to visit Julie twice a week. On those visits, they would take Julie out for a walk and on other outings.

While Julie was in the nursing home section of Caulfield Hospital, the plaintiff arranged for her to have a birthday party, which was attended by friends, neighbours, the plaintiff’s family and Stan. In the meantime, the plaintiff made inquiries to locate a facility which might accept Julie on her discharge. Ultimately, she was able to arrange for Julie to be admitted to the Alexandra Private Nursing Home, which was near the plaintiff’s home. The plaintiff made the necessary arrangements to move Julie from the Caulfield Hospital to the Alexandra Home. She purchased a television for Julie. The plaintiff attended Julie each day at 11.30 am, to make sure that she had her lunch. She would leave at 1.30 pm to visit Stan. The plaintiff continued to make sure that the needs of both Stan and Julie were attended to, and she took them to visit each other on a regular basis.

On 25 November 2002, Stan had a fatal heart attack. The plaintiff was distraught, and had the difficult task of informing Julie of Stan’s death. The plaintiff organised Stan’s funeral, which was appreciated by Julie. Subsequently, the plaintiff undertook the task of clearing Stan’s possessions out of Clarence Court.

After Stan’s death, the plaintiff organised for Julie to be given a private music session once per week. The plaintiff organised for Julie to have her hair done weekly, and for a masseuse to attend her. All of Julie’s needs were looked after by the plaintiff, who visited her daily. In addition, the plaintiff continued to maintain Julie’s house in Kooyong Road. She had some pine trees removed from the garden, and a number of repairs undertaken to the house.

At that time, the owners of Alexandra sold the nursing home, and as a result the quality of care provided to the residents dropped considerably. The plaintiff was at the forefront of efforts by a number of relatives to ensure that the residents of the home were properly cared for. In her affidavit, the plaintiff set out in some detail the efforts made by her to address the problem. Ultimately, she arranged for the nursing home staff’s union to become involved. As a result, the quality of care provided to the residents, including Julie, improved significantly. The plaintiff and another relative of a resident spent a number of days reorganising the laundry. The plaintiff also addressed a serious problem which had arisen concerning the distribution of the medication of residents. She formed a residents’ care group, and created a newsletter.

During that time, Julie’s health was beginning to deteriorate. The plaintiff continued to attend upon her, and was left to make critical decisions concerning her medical care. At that time, she received a telephone call from the Spanish Consulate in Melbourne. The woman, who spoke to her, said that she had been contacted by the plaintiff’s family in Spain, and asked the plaintiff how much money Julie had in the bank. The plaintiff responded that it was none of their business.

When Julie died, the plaintiff contacted the Spanish Consulate, and asked that Julie’s family be notified. However, the plaintiff did not receive any acknowledgement from Julie’s family in Spain, and they did not send flowers for her funeral.

In her affidavit, the plaintiff also gave evidence as to her financial position, to which I shall later refer. She was cross-examined by Dr Hanscombe SC, who appeared with Mr A P Dickenson for the defendant on that aspect of her evidence. However, she was not cross-examined on her evidence in her affidavit as to the relationship which she had with Julie and Stan, or as to the nature and extent of the care and support, which she gave to them.

Supporting affidavits

The plaintiff’s husband, Hans Unger, swore an affidavit in support of the plaintiff’s application. In his affidavit, he describes how, after June 2000, the plaintiff regularly visited Stan and Julie in hospital, or in the homes in which they resided. Mr Unger states that each night the plaintiff would relate to him an account of her daily visit to see Julie and Stan. On most Saturdays, Mr Unger and the plaintiff would have Julie and Stan to lunch at their home. The plaintiff continued to visit Julie and Stan at the nursing home, and to provide for their needs. Mr Unger went with the plaintiff on a number of times to the nursing home, and could see first hand how his wife lavished care on Julie. Mr Unger stated that, to his observation, the plaintiff gave to Julie and Stan care and kindness which went beyond the simple ties of friendship, and she attended to all their needs as if they were her family.

Ms Dianne Lemmon has also sworn an affidavit in support of the plaintiff’s application. Ms Lemmon cared for her mother-in-law at the Alexandra Private Nursing Home from 1998 until 2007, and she visited her mother in law almost daily during that period. During that period, Ms Lemmon met the plaintiff, when she was visiting Julie, who was in the next room along from Ms Lemmon’s mother-in-law. Ms Lemmon states that the plaintiff was present at the home on many of the occasions on which she visited her mother-in-law.

A further affidavit on behalf of the plaintiff was sworn by Mr Paul Ryan, the solicitor who was engaged by the plaintiff to prepare wills and enduring powers of attorney for Stan and Julie. I have ruled part of the affidavit of Mr Ryan to be inadmissible. However, in the concluding paragraph of his affidavit, Mr Ryan stated that he was able to speak, from his own observation, of the concern and commitment of the plaintiff for the care and maintenance of both Stan and Julie. He stated that, to his observation, the relationship between Julie and the plaintiff had become more akin to that of a mother and daughter. The plaintiff supervised the medical treatment, feeding and food standards of Stan and Julie, and also the selection and condition of their accommodation, to an extent which, to Mr Ryan’s perception, exceeded that usually given by family members to their own parents.

Finally, Mr Kenneth Lodge also swore an affidavit on behalf of the plaintiff. Mr Lodge was employed at the Alexandra Private Nursing Home in Caulfield as a diversional therapist between 2006 and 2008. During that time, Mr Lodge came to know the plaintiff because of her constant attendances at the home, feeding lunch and looking after Julie. Mr Lodge saw the plaintiff almost every day of the week. When the plaintiff had to go away for some reason, she always arranged for a friend to come in and cover for her.

The defendant’s counsel did not cross-examine Mr Unger, Ms Lemmon, Mr Ryan or Mr Lodge.

Defendant’s affidavits as to relationship between testator and plaintiff

In response to the parts of the plaintiff’s affidavits which related to her relationship with Julie, the defendant filed a short affidavit by Ms Amalia Lopez. Ms Lopez stated that she was a friend, neighbour and former work colleague of Julie Woirnarski. Before Julie was admitted to hospital in 2002, Ms Lopez regularly visited Julie at her home, but she never saw the plaintiff there. She said that she first met the plaintiff when Julie was an inpatient at the Alexandra Private Nursing Home. On one occasion, the plaintiff said to her that Julie’s family would be upset because, when Julie died, all her estate would go to the plaintiff. Ms Lopez also stated that during the time that Julie was in hospital, she visited Julie regularly, but she used to avoid visiting her at lunch time, as the plaintiff would sometimes be there. Ms Lopez was cross-examined by Mr Newton, who appeared for the plaintiff, on both of those matters.

The defendant also swore an affidavit, to which I shall refer in greater detail later in these reasons. In that affidavit, she stated that when she heard in June 2000 that Julie had suffered a nervous breakdown and was in hospital, she immediately arranged to travel to Australia with her niece. When she came to Australia, she offered to take care of both Julie and Stan in Spain until they were better, but they did not want to leave Australia. In 2003, the defendant’s nephew wrote to the plaintiff, asking her to pass on the family’s love to Julie, and asking the plaintiff to keep them informed about Julie’s condition.

The plaintiff’s financial position

The plaintiff is 66 years of age, and her husband is 71 years old. They jointly own their family home in Kooyong Road, Caulfield, which the plaintiff values at $1,000,000. In addition, the plaintiff and her husband jointly own a house in Centre Road, East Bentleigh, which the plaintiff values at $620,000, and a house at Quinns Road, East Bentleigh, which the plaintiff values at $650,000. The plaintiff has accrued entitlements in the Unger Superannuation Fund totalling $336,800. She also has a bank deposit of $49,000.

In cross-examination, the plaintiff agreed that her husband, her brother William Goldberg, and herself are registered as joint proprietors of a property at 3 Tabilk Court, Wantirna. She stated that that property was originally purchased in 1979 in their joint names. However, subsequently her brother has paid out the interest of both her husband and herself. The plaintiff stated that her brother had chosen not to have the property transferred out of their joint names, because of his concern that if he becomes involved in a relationship which fails, his interest in the property could be vulnerable. I accept the evidence of Mrs Unger, who I regard as an honest witness. I accept that she and her husband each own their interests in the Tabilk Court property on a constructive trust for and on behalf of William Goldberg.

The plaintiff also has shares, and a loan account, in Caulfield Floors Pty Ltd. The financial accounts of that company were tendered in evidence. According to the balance sheet of the company, at 30 June 2009, the total assets of the company were $89,238, which consisted, predominantly, of stock in hand (worth $81,000). The balance sheet records liabilities of the company to the plaintiff and her husband of $129,000 each. The plaintiff and her husband are joint shareholders in the company. Accordingly, the plaintiff’s interest in the company, whether as a result of her loan account, or by virtue of her shareholding, is worth approximately $45,000.

As I stated, the plaintiff has an accrued entitlement of $336,800 in the Unger Superannuation Fund. Her husband has an accrued entitlement of $343,444. The superannuation fund has cash at bank of $260,000. The principal asset of the superannuation fund are units in the Unger Property Trust, of which Unger Nominees Pty Ltd is the trustee. The trust owns two factories at 20-22 Independent Street, Moorabbin, which are valued, in the council rate notices, at $183,000 each. Those properties are currently leased to the plaintiff’s son, who conducts his business there. In cross-examination, the plaintiff stated that her son pays a rent which is approximately one half of market rental.

Until 30 June 2009, the plaintiff and her husband conducted their income earning activities through Caulfield Floors Pty Ltd. That company ceased business in June 2009. In its last profit and loss statement, it recorded a gross loss of $18,000, and a net loss of $59,000.

In her tax return for the year ending 30 June 2009, the plaintiff declared a taxable income of $16,106. That income mainly consisted of wages of $5,400 and net rent (from the two houses in East Bentleigh) of $8,960. Since 1 July 2009, she has ceased to receive wages from Caulfield Floors Pty Ltd. She agreed that the property at Centre Road, East Bentleigh is let at a below market rental, and she explained that she had not asked for a higher rent, because the tenants look after the property well.

In cross-examination, the plaintiff stated that her son will take over the business formerly conducted by Caulfield Floors Pty Ltd. However, the company will not seek payment from the son for the goodwill of the business. She stated that the son would take over the business because, it had been trading for 45 years, and it had a reputation which went with it. The plaintiff also stated that she was not taking benefits from the superannuation trust, but that the trust was being restructured into a pension fund.

The defendant’s position

The defendant (“Elena”) has sworn an affidavit, in which she has set out the position of herself and of her siblings and family in Spain. Elena is the eighth of nine siblings. She was born in 1934. Her father died when she was 14 years of age. As the youngest daughter, it was her role to remain at home in order to look after her mother. She lived with her mother and cared for her until she died in about 1983. As a result, Elena never married, nor earned money on her own account.

In 1974, Julie purchased an apartment in Leon in Spain. The apartment was rented out, and Elena received the rental income from the property to assist her with the care of her mother. From time to time, Julie also assisted by sending her mother money until the apartment was purchased.

As I stated, by her last will, Julie bequeathed the whole of her estate to Elena, with a direction that she divide it among her brothers, sisters, nephews and nieces in her absolute discretion. It is common ground that the direction, as to the division of the estate by Elena, is, strictly, void, as an impermissible delegation of the deceased’s testamentary discretion. Accordingly, it is accepted that, under the will, Elena is the sole beneficiary.

Elena is presently 75 years of age. She has some problems with her heart, but is otherwise in reasonable health. She lives in a simple rented apartment, in which she has resided for some 43 years. The apartment is basic. It does not have a shower or any hot running water. Elena uses the rent from the apartment in Leon to supplement her pension, which is just EU $561 per calendar month. The apartment in Leon is valued at EU $102,000 (approximately $170,000). Elena does not have any other assets or any other sources of income.

In her affidavit, Elena has also set out the financial circumstances of other members of her family who might be the beneficiaries of the exercise by her of the discretion described in Julie’s will. It is not necessary for me to set out the details of the financial position of each of those individuals. In summary, none of them have any significant assets, nor do any of them have a large income. Generally, it would be appropriate to describe their means and assets as being quite modest.

The Administration and Probate Act 1958 Part 4

The relevant provisions of the Act, under which the plaintiff’s claim is made, are well known. Section 91(1) provides that the court may order that provision be made out of the estate of a deceased for the “proper maintenance and support” of a person “for whom the deceased had responsibility to make provision”. Under s 91(3), the court must not make an order pursuant to subsection (1), unless the court is of the opinion that the distribution of the estate of a deceased person effected by her will does not make “adequate provision for the proper maintenance and support” of the person making the claim.

Section 91(4)(e) to (p) specify twelve matters to which the court must have regard in determining, first, whether the deceased had a responsibility to make provision for the claimant, secondly, whether the distribution of the estate of the deceased person effected by her will makes adequate provision for the proper maintenance and support of the claimant, and, thirdly, the amount of provision (if any) which the court may order for the claimant.

Thus, in brief terms, this case raises three issues, namely:

(1)Whether Julie had a “responsibility” to make provision for the “proper maintenance and support” of the plaintiff.
(2)Whether, in her will, Julie failed to make adequate provision for the proper maintenance and support of the plaintiff, pursuant to that responsibility.
(3)If so, the amount of provision (if any) which I should order to be made out of the estate of the deceased for the proper maintenance and support of the plaintiff.

Submissions

Mr Newton submitted that the plaintiff is a person in respect of whom the testatrix, Julie, had a responsibility to make provision for her proper maintenance and support. In particular, he submitted that the terms in which s 91(1) is expressed, and the reference to “any family or other relationship” in s 91(4)(e), make it clear that, under the Act, a claim may be maintained by a person who is not a family member. Mr Newton submitted that, in an appropriate case a person in the position of a carer for the deceased, could bring a claim under Part 4 of the Act. He further submitted that the relationship between the deceased and the plaintiff was, in any event, akin to one of parent to child. He drew my attention to parts of the evidence, in which both Julie and Stan regarded the plaintiff as their “adopted” child. He contended that, for the better part of a decade before Julie’s death, the plaintiff had acted as a daughter towards her. Mr Newton referred me to the decision of Hansen J in Iwasivka v State Trustees Limited[1], in which his Honour described the relationship between the plaintiff, who was the deceased’s niece by marriage, and the deceased, as analogous to that of parent and child. Mr Newton also referred to passages from the judgment of Harper J in Schmidt v Watkins[2], in which his Honour gave consideration to the changes, which had been made to Part 4 of the Act, by amendments contained in the Wills Act 1997.
[1][2005] VSC 423.
[2][2002] VSC 273.

Mr Newton submitted that, on the evidence, I should conclude that Stan and Julie regarded the plaintiff as if she were their daughter, and that, in response, the plaintiff’s devotion to them was characteristic of the conduct of an adult daughter to her elderly and vulnerable parents. Julie did not have any children of her own, and the plaintiff was the person who was closest to being a daughter to her. Mr Newton submitted that, by contrast, the blood relatives of Julie, who were far distant in Spain, had very little contact with Julie, and their relationship to her was quite limited.

Mr Newton further submitted that although the plaintiff does have reasonably substantial assets, nevertheless both she and her husband only have a limited income. They are both retired. The two investment properties, owned by them, provide them with long term security, but they only produce a small income. The assets of the property trust, which is the basis of the superannuation trust, are part of a “succession plan”, which the plaintiff and her husband have long held for their son. Mr Newton submitted that in light of the low income of the plaintiff, and the fact that she has little by way of liquid cash resources, Julie had a responsibility to her to make adequate provision for her proper maintenance and support. He referred to s 91(4)(k), and relied on the contribution made by the plaintiff to the welfare, not only of Julie, but also of her husband, Stan. In conclusion, Mr Newton submitted that I should make an order, under s 91(1), for provision out of the estate of the deceased in favour of the plaintiff of the sum of $500,000. He contended that such provision would leave intact a substantial balance in the estate, which would be available for division between the members of the defendant’s family in Spain.

In response, Mr A P Dickenson, who appeared with Dr C Hanscombe SC for the defendant, also referred to passages from the judgment of Harper J in Schmidt v Watkins[3], in which his Honour stated that, generally, acts of selfless generosity by neighbours and friends do not, of themselves, have the result that a testator has a responsibility to make provision in favour of such persons out of his or her estate. Mr Dickenson submitted that both historically, and in its structure, s 91 of the Act is primarily concerned to provide provision for members of a deceased person’s family. In particular, he submitted that the paradigm relationship, out of which the relevant responsibility might be found in s 91(1), is the family relationship.
[3][2002] VSC 273, [23]-[25].

Mr Dickenson sought to distinguish the decision of Hansen J in Iwasivka. In that case, the plaintiff, from an early age, had had a relationship of daughter to mother to the deceased. The plaintiff had long regarded the deceased as her defacto mother, and, in turn, the deceased had treated the plaintiff as if she were her daughter. By contrast, he submitted, in this case there was no such “reciprocity” of relationship between the plaintiff and Julie. Rather, at the end of Julie’s life, the plaintiff gave invaluable and extensive help to Julie and Stan in their later years. However, that did not thereby create a relationship of mother and daughter between Julie and the plaintiff. The age difference between the two women was only 12 years. There was no evidence of any assumption of responsibility to the plaintiff by the deceased. He submitted that those facts made it inappropriate to characterise the relationship between the plaintiff and the deceased as akin to mother and daughter.

Further, Mr Dickenson submitted that, although the plaintiff did provide comfort and support to Julie during the last seven years of her life, she did not adopt the role of the primary carer towards her. Rather, for all but about one year of that period, Julie was in a nursing home, the staff of which had the primary responsibility for her care and upkeep.

In addition, Mr Dickenson submitted that a primary obstacle to the claim by the plaintiff is that she has not proven that she has any need for provision to be made in her favour out of the estate of the deceased pursuant to s 91(1) of the Act. He emphasised that the jurisdiction, under s 91, is to make provision for the “proper maintenance and support” of the claimant. In this case, the plaintiff has ample resources for her own maintenance and support. The plaintiff has, for family purposes, chosen to structure her assets so that they do not produce a significant income. Nevertheless, he submitted that she has, at her disposal, significant assets, which she could convert to cash, or otherwise from which she might derive a more significant income.

By contrast, Mr Dickenson submitted that, under s 91(4)(f), Julie owed a moral duty to her sister Elena to provide for her as her closest living relative. Elena had made a number of selfless sacrifices in order to look after their mother, thus enabling Julie to come to Australia, where she had prospered. Elena is now at an age at which she is vulnerable, with few assets, and a small income. In those circumstances, Julie owed Elena a duty to make substantial provision for her for her proper maintenance and support. Although they were separated by distance, nevertheless Elena did her best to provide appropriate support and assistance to Julie when she needed it. In particular, in 2000, when Julie took ill, Elena made her way to Australia to offer her support. In the ensuing years, Elena, and the deceased’s family in Spain, endeavoured, as best they could, to remain in contact with Julie. Mr Dickenson submitted that the continuation of the family bond between the deceased and her relatives in Spain was recognised by the deceased in her will.

In conclusion, Mr Dickenson submitted that it is relevant that the plaintiff, for personal reasons, is not maximising the income which she could derive from her properties, for her own maintenance and support. Instead, the plaintiff and her husband have chosen to use the properties as part of a “succession plan” for their children. Mr Dickenson submitted that the legislation is not designed to assist people who so choose to structure their affairs, at the expense of needy relatives, such as the defendant, for whom the testator had made appropriate testamentary disposition.

Legal principles

Before the passing of the Wills Act 1997, the categories of persons, who were entitled to make a claim under Part 4 of the Administration and Probate Act, were limited, in Victoria, to the widow, widower, and children of the deceased. Accordingly, any application made under the previous provisions raised two fundamental questions for the court. The first question was whether the applicant had been left without adequate provision for his or her proper maintenance and support. That question was described as the “jurisdictional question”. The second question, involving the exercise of a judicial discretion, was what provision the court should make in favour of the applicant, if the first question is answered in the affirmative.[4]
[4]Singer v Berghouse (1994) 181 CLR 201, 211 (Mason CJ, Deane and McHugh JJ).

As amended in 1997, s 91(1), does not specify any particular category or categories of person, who may make a claim under Part 4. Rather, the section is now expressed in terms entitling any person “for whom the deceased had responsibility to make provision”, to make a claim under Part 4. The second reading speech of the Attorney-General, introducing the amending legislation, makes it plain that the decision, not to specify a list of eligible applicants, was a considered one, leaving to the court the question whether provision should be made in the case of any particular applicant. Thus, as Harper J observed in Schmidt v Watkins[5], the two stage process, under the provisions of Part 4, now involves three questions, which are expressed in s 91(4)(a), (b) and (c). The first issue is whether the plaintiff has established, on the balance of probabilities, that the deceased had a responsibility to make provision for his or her proper maintenance and support.
[5]Above, [8].

Although a claim by a plaintiff now involves three questions, there is a significant overlap in the considerations relevant to each of them.[6] Section 91(4)(e) to (p) specifies twelve factors, to which the court must have regard in deciding each of the three questions. Further, the decision of the court on the first question, namely whether the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff, will necessarily reflect on the nature and extent of any such responsibility, and the question whether that responsibility was discharged by the deceased. Nevertheless, the first question was very much at the forefront of the competing submissions in the present case.
[6]White v Barron (1980) 144 CLR 431, 443 (Mason J); Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J).

For many decades before the introduction of the 1997 amendments, the question, whether a deceased had made adequate provision for the proper maintenance and support of an applicant, was determined by reference to the test of what testamentary disposition a wise and just testator would have thought it his or her moral duty to make in the interests of the applicant, had the testator been fully aware of all the relevant circumstances. The locus classicus of that test is the frequently cited judgment of Salmond J in Re Allen (deceased); Allen v Manchester[7], which was quoted with approval by the Privy Council in Bosch v Perpetual Trustees Co[8], and which has been subsequently approved and adopted by the High Court in a number of decisions.[9]
[7][1922] NZLR 218, 220-221.
[8][1938] AC 463, 479.
[9]See for example McCosker v McCosker (1957) 97 CLR 562, 571 to 572 (Dixon J); Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494, 519 (Fullagar J), 527 (Kitto J); Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 147 TO 148 (Gibbs J).

In Blair v Blair[10], the Court of Appeal held that the same test applied in determining whether under s 91 (as amended in 1997) a deceased had a responsibility to make adequate provision for the proper maintenance and support of the plaintiff, and, if so, whether the deceased had made such provision out of the deceased’s estate.
[10][2004] VSCA 149; (2004) 10 VR 69.

In 1994, in Singer v Berghouse (No 2)[11], three of the five members of the High Court expressed the view that resort to the test of the deceased’s moral duty was neither necessary nor helpful. However, in the subsequent decision in Vigolo v Bostin & Ors[12], Gleeson CJ[13], and Callinan and Heydon JJ in their joint judgment[14], expressed support for the retention of the test of the moral duty, to be determined by reference to the hypothetical wise and just testator. On the other hand, Gummow and Hayne JJ[15] supported the approach in Singer, and considered that it was preferable to discard reliance on shorthand expressions such as “moral duty”. Subsequently, in Lee v Hearn[16], the Court of Appeal, referring to Vigolo v Bostin, expressed the view that the concept of a moral duty continued to be relevant in determining the question, under s 91(1), whether a deceased owed a responsibility to the applicant to make provision for the applicant’s maintenance and support.
[11](1994) 181 CLR 201, 209 (Mason CJ, Deane and McHugh JJ).
[12](2005) 221 CLR191.
[13]Page 202 [21].
[14]Page 228 to 230 [113]-[121].
[15]Page 218 [73].
[16][2005] VSCA 127; (2005) 11 VR 270, 274 to 275 [9] (Callaway JA), page 286 [53]-[55] (Batt JA), page 286 [57] (Buchanan JA).

Although the issues raised by an application under s 91 are determined by reference to a moral duty owed by the hypothetical wise and just testator, the court is not at large in determining a claim by a plaintiff by reference to that standard. A number of important principles have evolved in decisions which have dealt with the relevant statutory provisions. The first principle concerns the fundamental freedom of testamentary disposition of any individual. The courts have repeatedly emphasised that provisions such as those in Part 4 of the Act are not a warrant for the court to rewrite the will of the testator to accord with the court’s individual or idiosyncratic view as to what provision the testator should have made in favour of the plaintiff or anyone else.[17] In Pontifical Society for the Propagation of the Faith v Scales[18], Dixon CJ stated:

“The court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the court should rewrite the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the court.”

[17]Grey v Harrison [1997] 2 VR 359, 363 (Callaway JA); Stott v Cook (1960) 33 ALJR 447, 453; Worladge v Doddridge (1957) 97 CLR 1, 20-21 (Kitto J).

[18](1962) 107 CLR 9, 19.

It is important to bear in mind that the responsibility of the deceased, which is the foundation of a claim under s 91(1), is a responsibility of a particular kind, namely, to make adequate provision for the plaintiff’s proper maintenance and support.[19] That qualification is important in determining, not only the question of the existence of the responsibility of the deceased, but, also, the nature and extent of any such responsibility. The duty of the testator, which is in issue, is not to reward a claimant, or to distribute his or her estate according to notions of fairness or equity. Rather, the duty is of a specific type, namely, to make adequate provision for the proper maintenance and support of the claimant.
[19]Blair v Blair (above) [11], [13] (Chernov JA); Lee v Hearn (above) [53] (Batt JA).

The nature and content of the moral obligation of the wise and just testator is not fixed or static. Rather, it is a flexible concept, the measure of which is adapted to conform with what is considered to be right and proper according to contemporary accepted community standards.[20] In determining that duty, the court is obliged to give full weight to the adjectives “adequate” and “proper”. In Pontifical Society for the Propagation of the Faith v Scales[21] Dixon CJ stated:

“It has often been pointed out that very important words in the statute are ‘adequate provision for the proper maintenance and support’ and that each of these words must be given its value. ‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but also to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning.”

[20]Collicoat v McMillan [1999] 3 VR 803, 818 [43] (Ormiston J); Lee v Hearn [2005] VSCA 127, [8] (Callaway JA).

[21](1962) 107 CLR 9, 19.

On the other hand, it is relevant to recall that the authorities have adopted the concept of a “moral duty”, so as to distinguish it from any legal duty imposed on the testator, whether by statute or common law. Originally, the testator family maintenance provisions were introduced to cater for the lack of any legal duty owed by a testator to his or her spouse and children. Accordingly, under Part 4, a deceased may have a responsibility to make adequate provision for the proper maintenance and support of a claimant, notwithstanding that, during his or her life time, the deceased was under no legal duty to do so.

Before the introduction of the 1997 amendments, the nature and content of the moral duty of the wise and just testator developed in the context of claims by widows, widowers and children of deceased persons. The statutory description of the duty – to make adequate provision for the proper maintenance and support of the applicant – readily fitted into those categories of family relationship. The courts developed a number of principles to determine whether, in an appropriate case, a wise and just testator would have considered it his or her moral duty to make provision for his or her spouse or offspring, and to determine the nature and extent of that provision. Those principles were, in large measure, derived from the particular features of the familial relationship of the deceased to his or her spouse or children. As Gleeson CJ observed in Vigolo v Bostin[22]:

“From the earliest days, courts in expounding the legislative purpose have invoked moral values. The reason is not difficult to see. The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member, typically a widow. By hypothesis, the testator had the legal right to dispose of his estate as he thought fit, and the person or persons left without adequate provision had no legal right to inherit beyond the extent provided for in the will. The justification for conferring upon a court a discretionary power to intervene, and to make an order modifying the legal effect of the will, was explained in terms of familial obligation, not unnaturally or inappropriately described as moral. …
The ‘testamentary duty’ which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make ‘proper’ provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based.”

[22]Page 199 to 200, [11]-[12].

Although the 1997 amendments dispensed with specific categories of claimants, confined to particular members of the deceased’s family, nevertheless the legislation retained, as the touchstone of the relevant responsibility, the obligation to make “adequate provision” for the “proper maintenance and support” of the claimant. In Schmidt v Watkins[23], Harper J expressed the view that the amendments, effected by the 1997 Wills Act, were “part of a continuum rather than … a complete break from the past”. That view has also been adopted by a number of other members of this Court, including Dodds-Streeton J in MacEwan v Shaw[24], by Nettle J in McKenzie v Topp[25], and by Hansen J in Iwasivka v State Trustees Limited[26]. I respectfully consider that that approach is correct. The continued use, in the legislation, of the concept of adequate provision for the proper maintenance and support of the claimant, and the factors enumerated in s 91(4)(e) to (p), all fortify the conclusion that the fundamental approach of the court, by applying the test of the moral duty of the hypothetical wise and just testator, is to be informed by the principles which developed before the 1997 amendments.
[23][2002] VSC 273 [12].
[24][2003] VSC 318; (2003) 11 VR 95, 103 [40]-[42].
[25][2004] VSC 90 [34].
[26][2005] VSC 323, [71].

On the other hand, it is of course clear that, under the current s 91, a plaintiff need not be a member of the deceased’s family. That is plain, not only from the language of s 91(1), but also by reference to subparagraph (e) of s 91(4), which directs the court to have regard to “any family or other relationship” between the deceased person and the applicant. Nevertheless, the defined nature of the duty, as perceived through the eyes of a wise and just testator, must necessarily limit the ability of persons, who are not related to the deceased, to successfully make application for provision under s 91(1). Ordinarily, a wise and just testator would readily recognise an obligation to make proper provision for the support and maintenance for his or her spouse and children. As I have stated, that obligation, of a parent or spouse, is well recognised according to contemporary accepted community standards. On the other hand, in my view, those standards would only support the existence of such a moral duty by a testator, to a person, who is not a member of his family, in quite rare and exceptional circumstances. Ordinarily, I would not expect that a wise and just testator, adhering to contemporary standards, would perceive it his or her moral duty to make provision for the maintenance and support of a close friend or neighbour, even where such a person had rendered invaluable and selfless service or aid to the testator. It might be commendable, or even desirable, for a fair-minded testator to include such a person in his or her bounty. However, in my view, it would only be a rare and quite exceptional case which would justify a conclusion that the testator had a moral duty to provide for his or her maintenance and support.

The limitations of the moral duty of the wise and just testator, in the case of a claimant who is not a family member, were discussed by Harper J in Schmidt v Watkins, in which the claim was made by a plaintiff who claimed to be the defacto partner of the deceased. In considering the ambit of the 1997 amendments, Harper J made the following observations, which are pertinent to the present case:

“[23]    In the context of this case (as will be seen when the facts are examined) it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors.
[24]    To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it that those who have a duty not so much to reward but rather to provide maintenance and support do so by appropriate testamentary disposition. And the question: ‘Should I reward my benefactor?’ is very different from the question: ‘Do I have a duty to X to make provision for his or her proper maintenance and support?’ Different questions demand different approaches as one seeks to formulate the correct (or, rather, a proper) answer.
[25]    In saying this, I acknowledge my obligation to have regard to ‘any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased’.[27] Such contribution may perhaps give rise to a duty to make adequate provision for the proper maintenance and support of the benefactor/applicant. But generally it will not do so of itself. Generally, it will be a factor in the creation of such a duty, or will enlarge a duty already in existence; as when a spouse or child of the deceased contributed to the deceased’s wealth by working at less than award rates in the family industry.”

[27]Referring to s 91(4)(k).

It was by reason of the considerations, to which I have just referred, that Mr Newton placed particular emphasis on the evidence which indicated that the relationship between the plaintiff and the deceased had a number of characteristics common to the relationship of a daughter to her mother. Clearly, where an applicant, under s 91(1), although not a family member, is able to point to a relationship with the deceased, which was akin to that of a former spouse or child of the deceased, it may be possible to conclude that a wise and just testator would have considered it his or her moral duty to make adequate provision for that person’s proper maintenance and support.

Such was the case in Iwasivka v State Trustees Limited[28], to which Mr Newton referred. The plaintiff in that case was the niece by marriage of the deceased. The plaintiff’s father had divorced her mother when she was a young child, and had migrated to Australia with her. The deceased, who was the sister in law of the plaintiff’s father, assumed many of the responsibilities of a mother, after the plaintiff’s arrival in Australia. As the years went by, the relationship between the plaintiff and the deceased continued to resemble that of a parent and child. In those circumstances, Hansen J held that the deceased did have a responsibility to make adequate provision for the proper maintenance and support of the plaintiff. In doing so, his Honour characterised the relationship between the plaintiff and the deceased as follows:

“As far as the plaintiff is concerned, the deceased owed her obligations and responsibilities in virtue of the relationship between them being of or akin to that of mother and daughter. The relationship went beyond that of a niece by marriage. Apart from that and the deceased having, as counsel conceded, supported the plaintiff financially when she was with her, the deceased had not provided financial support to the plaintiff.”[29]

[28][2005] VSC 323.

[29][76].

Those considerations are reinforced by s 91(4)(e), which directs the court to have regard to any “family or other” relationship between the deceased and the applicant. It is significant that the subparagraph contains specific reference to the presence of a family relationship between the deceased and the applicant, rather than directing the court simply to have regard to “the relationship” between the deceased and the applicant. In the context of s 91, and by its position in subparagraph (e), the phrase “or other” gains colour by the specific reference to the family relationship, as the paradigm relationship identified in subparagraph (e). Thus, although the applicant need not be a member of the deceased’s family, nevertheless the structure of subparagraph (e), the continued use of the concepts of adequate provision for the proper maintenance and support of the applicant, and the historical origins of s 91, all combine to focus the inquiry on whether the deceased and the applicant had a relationship which, at the least, had a material resemblance or equivalence to the type of family relationship from which notions of moral duty and obligation are commonly derived.

One factor, which is relevant in determining the existence, and content, of the moral duty in a particular case, is the conduct of the applicant to the deceased during his or her life time. That consideration was at the forefront of the case presented for the plaintiff. It finds specific expression in subparagraph (k) of s 91(4), which directs the court to take into account any contribution (not for adequate consideration) of the plaintiff to the building up of the estate, or to the welfare of the deceased, or the family of the deceased.

In a number of cases, the courts have recognised that the nature and extent of the moral obligation of a deceased is measured by reference, inter alia, to the deserts of the claimant, which may derive from contributions made by the claimant to the deceased, or support and care given by the claimant to the deceased during his or her life time.[30] In Goodman v Windeyer[31], Gibbs J (with whom Mason and Stephen JJ agreed) stated:

“One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator’s estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator’s estate, or has helped him in other ways, that gives the claimant a special claim on the testator’s bounty … The claimant’s conduct does not cease to be relevant if it has not been a financial benefit to the testator – if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator’s behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided.”

[30]In Re Allen; Allen v Manchester [1922] NZLR 218, 220 to 221 (Salmond J); Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494, 509 (Dixon CJ); Blore v Lang (1960) 104 CLR 124, 129 (Dixon CJ); Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 147 (Gibbs J); Collicoat v McMillan (above), 821 (Ormiston J).

[31](1980) 144 CLR 490, 497-498.

On the other hand, the courts have emphasised that, although the deserts of the applicant are relevant, it is not the role of the court to recast the testator’s will, so as to provide a reward for meritorious conduct of the applicant. That proposition can be found in the judgments of three members of the High Court in Blore v Lang[32]. In Goodman v Windeyer, Gibbs J referred to that principle, and continued:

“It is of course perfectly true to say that the power of the court under this legislation is to order that proper provision be made for the maintenance of the claimant, and not simply to reward the claimant for past services, but those dicta cannot mean that, in determining what is proper provision in all the circumstances of a particular case, the fact that a claimant has been a loving, helpful or dutiful spouse or child can or should be ignored.”[33]

[32](1960) 104 CLR 124, 134 (Fullagar and Menzies JJ), 137 (Windeyer J).

[33]144 CLR 490, 498.

It follows that the role of the court, in a case such as this, is not to determine whether, in all the circumstances, the testator was under an obligation to reward the plaintiff for the care and devotion which she gave to the testator and her husband in their latter years. Rather, the services given by the plaintiff to the testator, and to her husband, are relevant in determining the existence and the nature of any duty owed by the testator to the plaintiff to make adequate provision for her proper maintenance and support. A wise and just testator’s views, as to what constitutes adequate provision for a claimant’s proper maintenance and support, would relevantly be shaped, among other things, by the conduct of the claimant to the testator during his or her life time. On the one hand, what constitutes adequate provision for an indigent, but undeserving, offspring, may be dictated significantly, if not wholly, by the financial needs and circumstances of the claimant. On the other hand, what constitutes such provision for a loyal and devoted child, who is not in dire economic straits, would involve considerations which are not limited to economic need, but which would reflect what, in all the circumstances, would be a fair assessment of the claimant’s deserts.

Conclusions

In applying the above principles, it is useful to commence by examining the nature and extent of the relationship between the deceased and the plaintiff. In essence, Mr Dickenson submitted that the role assumed by the plaintiff in respect of the deceased, in her latter years, was that of a frequent visitor to the deceased. He explained, that during nearly all of those years, the deceased was in a residential facility, which had the primary role to care for her day to day needs. However, notwithstanding those submissions, in my view, the evidence reveals that the plaintiff’s role, in relation to the deceased, went well beyond that of a person who made regular visits to the deceased during her last years. Rather, the relationship between the deceased and the plaintiff contained a number of characteristics, which are commonly found in a close relationship between a parent and a child, and in particular between an elderly parent and a dedicated adult daughter.

First and foremost, the relationship between the deceased and the plaintiff, during Julie’s last seven years, involved almost complete trust reposed by Julie (and Stan) in the plaintiff. Correspondingly, the plaintiff assumed very significant, and onerous, responsibilities on behalf of both Julie and Stan. In 2001, Julie and Stan each entrusted her with their powers of attorney. The plaintiff assumed responsibility for the care and maintenance of their home, while they were in residential accommodation. Since 2000, the plaintiff bore the responsibility of making a number of important decisions concerning the care and welfare of both Julie and Stan. In particular, she made decisions as to their accommodation, oversaw their medical care, supervised their medication, and was regularly involved in consultations with those responsible for the treatment of Julie and Stan. On each occasion on which Julie was discharged from hospital, the plaintiff took charge of her. The appointment of the plaintiff as executrix of the will of Julie, in the event that she was predeceased by Stan, is itself testament to the trust placed by the deceased in the plaintiff.

The attentions, which the plaintiff gave to Stan and Julie, were marked by an extraordinary degree of devotion and sacrifice. The plaintiff regularly visited each of them on a daily basis, took them for outings, attended to their needs, and became their primary source of company and comfort. The kind of devotion which she gave to both Stan and Julie was at least equal to, if not well in excess of, the dedication which might be expected of, and given by, an adult child to an ailing and ageing parent.

The nature of the personal attentions which the plaintiff gave to Julie in particular, but also to Stan, bore the hallmarks of a defacto relationship of parent and child. Julie attended to their individual needs, including purchasing such necessities as clothes, toiletries and the like. She arranged for Julie to have hair cuts, organised her medical appointments, and organised additional therapeutic care by physiotherapists. The plaintiff took Julie (and Stan) to their medical appointments. She supervised Julie’s lunch, and made sure that she had it each day. After Stan’s death, the plaintiff arranged for Julie to have music lessons. In all these respects, the plaintiff went well beyond performing the role of a regular visitor to Julie (and, in his last two years, to Stan).

In addition, the plaintiff arranged and shared celebrations and landmark occasions with Julie and Stan, such as birthdays and Christmas. The plaintiff organised Stan’s funeral, and took responsibility for gathering and removing his possessions from Clarence Hall.

The plaintiff also took responsibility, in particular for Julie, in another important respect. On two occasions, when Julie was not being properly cared for in her accommodation, it was the plaintiff who took up cudgels on her behalf. In January 2002, when Julie was not properly looked after by a staff member at Sheridan Hall, the plaintiff had the matter addressed. She adopted a similar attitude on behalf of Julie when the quality of care deteriorated at the Alexandra Private Nursing Home, after the changeover of ownership of that institution. Again, that type of conduct is characteristic of the role of a close family member “standing up for” a frail and helpless parent.

It is clear from the evidence that the plaintiff and Julie (and indeed the plaintiff and Stan) shared a close emotional bond.[34] For her part, the plaintiff felt sympathy and deep affection for Stan and Julie. On the other side, both Stan and Julie became emotionally dependent on her and looked to her for comfort and support. Ultimately, it was the plaintiff who stayed with Julie during her last moments.
[34]Compare Re Buckland [1966] VR 404, 413.

In each of the respects which I have just mentioned, there can be discerned the characteristics which are commonly found, as I stated, in a relationship between an adult child and his or her elderly parents, in the later years of their lives. The type and extent of devotion given, and sacrifice made, by the plaintiff to Julie, and (for a shorter time) to Stan, might fairly be regarded as quite exceptional, even in the case of a devoted daughter. Julie and Stan did not have children, or other family, to look after them in their declining years. The plaintiff willingly and selflessly filled that gap. She assumed the role commonly performed by a son or daughter, or close relative, of the deceased and her husband. By her actions, she adopted the deceased and her husband, as they adopted her.

The role assumed by the plaintiff is, of course, also evident from the statements made by Stan and Julie to the plaintiff that they wished to regard her as their child. On one occasion, Stan entered the plaintiff and himself in a quiz competition at Clarence Court, which was for parents and children. I have already referred to the occasion upon which Stan (and then Julie) expressed the wish to “adopt” the plaintiff. Those expressions as to their relationship were not made in a vacuum, but occurred in the context of the care and devotion given by the plaintiff to Stan and Julie, and to which I have referred.

In all those circumstances, I am satisfied on the evidence that the plaintiff had a relationship with Julie which was closely akin to that of a daughter to an elderly mother. In characterising that relationship, it is also relevant that, between 2000 and his death in 2002, the plaintiff had a similar relationship with Stan. Her relationship with Stan was not formed in isolation, but as part of her relationship with the deceased and Stan as a married couple. The character of the plaintiff’s relationship with Stan – as a quasi/father-daughter relationship – necessarily reflected on and strengthened her relationship with the deceased.

Mr Dickenson submitted that the relationship between the plaintiff and Julie was different to the relationship between the plaintiff and the deceased in Iwasivka’s case. Certainly, in considering this factor, it is relevant that the “quasi parental” relationship was of a shorter duration than in Iwasivka. It occurred at a time at which neither Julie nor Stan could reciprocate the care and attention given to them by the plaintiff. To that extent, the relationship between the plaintiff and Julie was different to the relationship between the plaintiff and the deceased in Iwasivka’s case. By the same token, it is material that that relationship occurred at a time at which Julie was particularly vulnerable and in need of the care, affection and support of someone who occupied the position of a daughter to her.

That characterisation of the nature of the relationship between the plaintiff and Julie does not, of course, on its own, conclude the question whether Julie had a responsibility to the plaintiff to make adequate provision for her proper maintenance and support. Rather, that conclusion is, in many respects, a starting point in determining the question. However, the matters to which I have referred are also relevant to the question of the “deserts” of the plaintiff, in the sense described by Gibbs J in Goodman v Windeyer[35]. That factor is also expressed in s 91(4)(k), namely, any contribution made by the applicant to the welfare of the deceased or the family of the deceased. In this respect, it is clear that the deserts of the plaintiff were particularly strong. While, as Mr Dickenson points out, the care and attention given by the plaintiff to the deceased was only for a limited period in her life, nevertheless that period was one of some years. More importantly, the care and attention given by the plaintiff to Julie occurred at a time at which the latter was particularly in need of help, and had no-one else to rely on.
[35]Above.

On this aspect of the case, I would consider that a wise and just testator would take into account that the plaintiff was not motivated by ties of blood or family relationship in providing care and devotion to the deceased and her husband. Nor was the plaintiff in the position of a dutiful child, reciprocating to her parents the care and attention which they had given to her during her earlier years of her life. In my view, a wise and just testator would consider that those two considerations enhance the deserts of the plaintiff, by making her conduct more merit worthy.

Pausing there, the relationship between the plaintiff and the deceased, and the conduct of the plaintiff to the deceased and her husband, constitute a strong prima facie basis for the evidence of a duty on behalf of the deceased to ensure that the plaintiff had adequate provision for her proper maintenance and support. The question whether, as a result of those factors, the deceased had a responsibility to make such provision for the plaintiff is, of course, not decided in isolation, but in light of all relevant circumstances, and in particular those specified in subparagraphs (e) to (p) of s 91(4). In the context of this case, the factors which are particularly relevant include the existence of any competing claims on the estate of the deceased (s 91(4)(f)), the size and nature of the estate (s 91(4)(g)), and the financial means and resources of the plaintiff (s 91(4)(h)).

I turn, first, to the question of the existence of any competing claims on the estate of the deceased. In this respect, it is clear, on the evidence, that the deceased did have a responsibility to make adequate provision for the proper maintenance and support of her sister Elena, the defendant to this proceeding. Elena had made considerable sacrifices in her life to look after their mother. While she was discharging that responsibility, Julie was able to come to Australia, and make her life here. In that way, there was an indirect, but relevant, connection between the estate accumulated by Julie in her life time in Australia, and the sacrifice made by her sister, Elena, on behalf of her siblings. As a consequence, Elena now finds herself elderly, without a husband or children, and with only modest means of support.

It would appear that there was not a substantial amount of contact between the two sisters during Julie’s life time, after Julie had come to Australia. Nevertheless, when Julie became seriously ill in 2000, Elena came to Australia immediately to help. Thereafter, Elena, and the deceased’s family in Spain, did endeavour to maintain some contact and communication with her. The fact that, by her will, Julie recognised her sister’s claim on her bounty, is testament to the enduring bond which the deceased still felt to her family in Spain, even in the later stages of her life. In those circumstances, it can be readily concluded that the deceased did have a responsibility to make adequate provision for the proper maintenance and support of Elena. Indeed, Mr Newton did not seek to contend to the contrary.

Those considerations, then, lead to a consideration of the size of the estate (s 91(4)(g)). As I stated, the estate was valued, for probate purposes, at $1,718,985. That estimate included a value given to the property owned by the deceased in Leon. The plaintiff has sworn a recent affidavit, disclosing that the present value of the estate is $1,397,299. A distribution of the sum of $200,000 has already been made out of the estate of the deceased. If the plaintiff succeeds in this proceeding, the estate will have a liability of almost $100,000 for legal costs. Taking those two amounts into account, the current value of the estate, for the purposes of this claim, may be considered as $1.5 million. That estimate, properly, does not include the value of the house in Leon which, the plaintiff concedes, should be excluded from the value of the estate, and considered as an asset of the defendant.

Bearing those matters in mind, I turn to consider the financial means and resources of the plaintiff. I have already set out, in some detail, the present financial position of the plaintiff[36]. In summary, the plaintiff’s half interest in her home in Caulfield is worth $500,000. She has other assets, including her interests in two houses, her accrued superannuation entitlement, her shares in Caulfield Floors Pty Ltd (or that portion of the loan account which would be recoverable by her), and cash, worth approximately $1,000,000. She has a low income. Since she has ceased earning a wage from Caulfield Floors Pty Ltd, her annual income, from rent and interest, is a little over $10,000. However, her superannuation fund is being converted into a pension fund, and therefore her income will increase.
[36]Above, paras [34]-[40].

Overall, the plaintiff may be considered as being reasonably comfortable from a financial point of view. She has financial security, in that she and her husband own their own home, she has a half interest in two residential investment properties, and she has a healthy superannuation entitlement. On the other hand, she does not have significant liquid assets, and she only has a small income.

In assessing the plaintiff’s financial position, there is, I consider, some merit in Mr Dickenson’s submission that the plaintiff’s current lack of liquidity, and low income, is, at least in part, due to her choice as to how she wishes to structure her financial affairs. Nevertheless, it would be an exaggeration to describe her, as Mr Dickenson suggested, as wealthy. Rather, she is comfortably off, and has some assets by way of security. If she were to realise those assets, then the level of her financial security would reduce, and, in addition, she would not be in a position whereby she could ultimately benefit her children.

Mr Dickenson is correct in pointing out that the plaintiff is not in a position of financial need. However, as the authorities make plain, it is not necessary for a plaintiff to be indigent, or in difficult financial circumstances, to qualify for provision under Part 4 of the Act.[37] Indeed, such a proposition would not give appropriate weight to the adjectives “adequate” and “proper” in the formulation of the duty of the testator.
[37]Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 480-481; Blore v Lang (1960) 104 CLR 124, 135 (Fullagar and Menzies JJ, dissenting); Goodman v Windeyer (above); Vigolo v Bostin & Ors (2005) 221 CLR 191, 231 [122] (Callinan and Heydon JJ).

In this case, I do not consider that the financial position of the plaintiff is such as to negate the obligation of the testator, to make adequate provision for her, deriving from the plaintiff’s close bond with the testator, and her selfless service to the testator during the latter years of her life. Taking into account the plaintiff’s financial position, her relationship with Julie, and her exceptionally strong deserts, I consider that a wise and just testator, in the position of Julie Woinarski, would have considered it her moral duty to make some provision for the plaintiff, by way of legacy, which would provide a measure of liquidity to the plaintiff, while assisting the plaintiff to retain, for the future security of herself and her family, her investment assets. Such a disposition would provide appropriate financial support for the plaintiff, in light of her role as a deserving de facto daughter to the deceased in the latter stage of her life.

In reaching that conclusion, I regard the circumstances of this case to be quite exceptional. The dedication of the plaintiff to Julie, and to her husband, was quite extraordinary. So, too, was the extent of the self-sacrifice made by the plaintiff on their behalf. The support which the plaintiff gave them, in their last years, was invaluable and indispensable. In terms of the authorities relating to Part 4 applications, her “deserts” were extraordinarily strong. Those deserts are significant in reflecting what a wise and just testator would have considered to be “proper” maintenance and support for the plaintiff.

That conclusion derives support from the decision of the High Court in Goodman v Windeyer[38]. In that case, the plaintiff was the widow of the testator. They both had children by previous marriages. The plaintiff had married the testator ten years before his death, in 1976, at the age of 77 years. The plaintiff herself had assets, which were described, by Gibbs J[39], as “quite substantial” (although, it would seem, less substantial than the assets of the plaintiff in this case). Notwithstanding her relatively comfortable financial position, the High Court held that the testator had owed the plaintiff a duty to make provision for her proper maintenance and support, deriving principally from the sacrifices which the plaintiff had made, during the last two years of the testator’s life, in nursing and caring for him. While each case must, necessarily, be decided according to its own facts, the decision of the High Court in Goodman v Windeyer illustrates the approach of the court in determining what is adequate provision for the proper maintenance and support of the applicant, where the claim is substantially, if not primarily, based upon the deserts and conduct of the applicant towards the testator.
[38]Footnote above.
[39]499.

In determining the amount of provision which should be made on that basis, it is important to bear in mind the contrast between the plaintiff’s relatively comfortable financial position, and the straitened circumstances of the defendant. Further, it is important to ensure that the testamentary wishes of the deceased, as expressed in her will, are not so affected, as to detract from the proper recognition by the deceased of the substantial sacrifice, which the defendant made in order to look after their mother, thus enabling the deceased to make her way to Australia, where she accumulated the assets which now constitute her estate.

Taking all those matters into account, I consider that a wise and just testator, in the position of Julie Woinarski, would have considered it her moral responsibility to make provision for the proper maintenance and support of the plaintiff by way of a legacy out of the estate of a sum, which would provide adequate liquid assets to the plaintiff in her retirement, and which would provide her with a measure of security against future contingencies[40], without necessarily requiring her to realise the assets which underpin her security and the security of her family. Based on that approach, I do not consider that the deceased owed the plaintiff a duty to provide for her an amount of the dimension proposed by Mr Newton. The amount, for which he contended ($500,000) would, I consider, substantially exceed an amount which is adequate for the plaintiff’s proper maintenance and support, and would fail to give due weight to the competing claim (and rights) of the defendant in the context of the size of the deceased’s estate. Rather, I consider that, given the plaintiff’s financial resources, a legacy of $200,000 would be adequate to provide for her proper maintenance and support, in the manner which I have described.
[40]Bosch v Perpetual Trustee Co, 478; Goodman v Windeyer, 500.

Order

Accordingly, and subject to hearing from counsel, I propose to make the following orders:

(1)Declare that the distribution of the estate of Obdulia Woinarski deceased effected by her will dated 13 February 2001 does not make adequate provision for the proper maintenance and support of the plaintiff Kathleen Janet Unger.
(2)Order that provision for the plaintiff be made out of the estate of the deceased by adding the following paragraph 3A to the will –
3AI give and bequeath to Kathleen Janet Unger the sum of $200,000 without legacy interest.

I shall hear counsel on the question of costs.

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1 December 2009