Virtue v Trafford
[2012] VCC 1330
•18 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
FAMILY PROPERTY DIVISION
Case No. CI-10-02387
IN THE MATTER of Part IV of the Administration and Probate Act 1958
-and-
IN THE MATTER of the Will and Estate of NEIL RAYMOND VIRTUE (deceased)
| SHONA JEAN VIRTUE | Plaintiff |
| v | |
| KERRY FRANCIS TRAFFORD (who is sued as the Executor of the Estate of the above Deceased) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2012 | |
DATE OF JUDGMENT: | 18 September 2012 | |
CASE MAY BE CITED AS: | Virtue v Trafford | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1330 | |
REASONS FOR JUDGMENT
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SUBJECT: TESTATOR'S FAMILY MAINTENANCE
CATCHWORDS: claim by a daughter of the deceased – deceased left his estate to his domestic partner – whether the deceased owed the plaintiff a responsibility – whether the deceased breached a moral duty to make provision for the plaintiff – failure by the defendant to provide an inventory and account of the real and personal state of the deceased
LEGISLATION: Administration and Probate Act 1958
JUDGEMENT: the Will of the deceased be amended to include a legacy to the plaintiff of $5,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | The defendant appeared in person | - |
HIS HONOUR:
Introduction
1 Neil Raymond Virtue (“the deceased”) died on 21 July 2009. He left a Will dated 1 May 2002. The plaintiff is one of two children of the deceased. The defendant was the domestic partner of the deceased. The defendant obtained probate of the Will of the deceased on 3 December 2009.
2 The plaintiff commenced a proceeding by Originating Motion filed on 3 June 2010 seeking proper provision for her maintenance and support out of the estate of the deceased pursuant to the provisions of the Administration and Probate Act 1958 (“the Act”).
3 The plaintiff and the defendant tendered a number of documents by consent which I inadvertently did not mark as exhibits because of the way in which they were given to me. Essentially, those documents are as follows, and are now marked as exhibits:
· An estimate of the residuary estate of the deceased: Exhibit A
· A letter of Victor Ismailovic, solicitor for the defendant, dated 17 November 2009 enclosing probate documents: Exhibit B
· A bundle of miscellaneous documents tendered by the plaintiff containing personal references: Exhibit C
· A handwritten statement of the defendant (accompanied by a typed version emailed to the Court) dated 28 April 2012 with a number of miscellaneous documents attached: Exhibit D
· A bundle of ANZ cheque account statements of the defendant: Exhibit E
· The Will of the deceased: Exhibit F.
4 The plaintiff and the defendant had solicitors acting for them at the commencement of the proceeding. However, at a relatively early stage of the proceeding, their solicitors ceased acting for them. The Court file reveals that orders were made by the Court on 23 September 2010; 4 November 2010; 31 January 2011 and 8 March 2011 of an administrative nature, because of the inaction of the plaintiff and the defendant in prosecuting the proceeding.
5 The first substantial order was made on 28 April 2011 when Judge Anderson made a number of orders, including orders that the defendant produce evidence of the assets and liabilities of the estate and that both parties be in a position to lead evidence of their current financial position and other matters relevant to Part IV of the Act.
6 Of particular interest is that Judge Anderson noted that he was informed that the deceased’s estate comprised a 1992 Audi motor vehicle sold for $2,000, and $80,000 in cash. He also noted that there was a Visa bill of $7,500, funeral and household expenses, and a debt of $35,000 to Andrew Pringle. He noted those matters in this order.
7 The next substantial order was made on 22 February 2012 by Judge Saccardo, who fixed the proceeding for trial on 13 September 2012. He made an order that evidence be confined to written statements, and that no evidence be adduced except through cross-examination.
The Trial
8 Prior to the commencement of the trial, I was informed that there had been an altercation between the plaintiff and the defendant. At the commencement of the trial, they each confirmed that there had been an altercation. I warned each of them to conduct themselves civilly.
9 The material which both the plaintiff and the defendant were required to file pursuant to the orders of Judge Anderson and Judge Saccardo was not filed. Therefore, I departed from the order made by Judge Saccardo by having the plaintiff and the defendant make an opening statement, and then give some evidence, which I adduced by direct questioning in an attempt to focus each of them in on the issues raised by Part IV of the Act.
The Plaintiff's Case
10 The plaintiff was born on 28 March 1971. She is now forty-one years of age. She is one of two children of the deceased. She has a half-sister. She is single. She has two daughters. One is eighteen years of age. She lives independently of the plaintiff. She is undertaking a hairdressing course. The other is thirteen years of age, and lives with the plaintiff. She is a full-time student in Year 8.
11 The plaintiff has no assets. She has no savings. Her only source of income is a disability pension. I assume that she has some Social Security parenting allowance for her thirteen-year-old daughter.
12 The plaintiff has suffered depression. She received some treatment for that illness. She is no longer receiving any treatment.
13 The plaintiff had an unhappy relationship with the deceased for some years. She developed a drug habit. She was sentenced to imprisonment on one occasion. In the few years prior to the death of the deceased, she said they had reconciled and got on reasonably well.
14 The plaintiff said that her grandmother paid the funeral expenses of the deceased of $7,727.61. She was given a discount of $880.00, leaving an amount owing to her by the estate of $6,847.00. The defendant did not contest that evidence.
The Defendant
15 The defendant has an obligation pursuant to s28(1) of the Act to provide a true and perfect inventory and account of the real and personal estate of the deceased. It was the very matter touched upon by the orders made by Judge Anderson. The only compliance, if it can be called that, with that statutory obligation and the orders of Judge Anderson, was the tender of probate documents which were apparently used for the purpose of the defendant obtaining probate. I will return to those documents later.
16 The defendant was born on 21 June 1956. She is now fifty-six years of age. She said that she has some assets, and some savings, but no income. She is in receipt of a Disability Pension, and also a carer’s allowance which she has been granted because she cares for her son, Denis, who is thirty-nine years of age. He suffers from a mental illness, which the defendant described as schizophrenia resulting from illicit drug use. He is under psychiatric care.
17 The defendant met the deceased in about 1994. They entered into a domestic relationship which persisted until the deceased died. It was a relationship of some twenty five years.
18 The defendant said that her only asset comprises a unit which is in her name. She chose to describe it as a unit; however, the address she gave is a house address. She said that she purchased a house from the Ministry of Housing. She contributed $3,500 to its purchase. Her parents gave her $20,000. She borrowed $52,000. These sums permitted her to buy the house and to undertake some work on the house to make it liveable. She became the sole proprietor of the house on 15 November 1988.
19 The defendant said that during her domestic relationship with the deceased he was a partner with two others in a street cleaning business. She gave a vague description of some level of difficulties the deceased had with his business partners which I gathered involved his business partners unlawfully removing monies from the business. The defendant did not work substantially throughout the relationship. She described her work pattern as being in work from time to time. It would appear that the deceased was the principal breadwinner. However, she said that he was imprisoned on a number of occasions, and was obviously out of work while in prison, and no doubt for some time following his release.
20 In about 1997, the deceased was a pillion passenger on a motorcycle. He was involved in a transport accident and suffered a major injury to one of his legs. The defendant said that he was in danger of an amputation which he was able to avoid. He made a damages claim. Initially the defendant mentioned damages of $380,000 as a first response to a direct question asked by me, but then said all the monies were consumed in medical treatment, leaving the deceased with just a little over $1,200. She said he was represented by a solicitor in the pursuit of the damages claim. The deceased did not work thereafter.
21 The probate documents reveal that the estate of the deceased amounted to $85,127.21 in bank deposits. In a Commonwealth Bank account there was $80,173.20. In a Smart Access account there was $2,327.21, and in a Streamline account $2800. What occurred thereafter is somewhat difficult to follow. What I understand is that after some liabilities of the deceased were paid, and legal costs, a sum of $74,024.65 was paid to the defendant.
22 The defendant came armed with very few documents. When I asked where her documents were she said that she left them at home or they were in storage. Over the lunchbreak she went to her mother's home and returned with a large bundle of ANZ bank statements. She was unable to make head nor tail of them. She gave them to me, and I then put them in some workable order.
23 The bank statements reveal that the defendant deposited $74,024.65 into an ANZ bank account. She then used those monies for her own purposes reducing the balance to $63,866.59 by 22 January 2009. On that date, she withdrew $45,000 which she said she put into a term deposit. She did not produce the term deposit.
24 The defendant said that all that is left is about $5,000. However, she produced no bank statements to allow me to trace how the initial sum of $74,024.65 was reduced to $5,000.
25 The defendant said that the deceased borrowed money from Andrew Pringle. She said she paid Andrew Pringle $35,000 to extinguish the debt. She said she paid a further sum of $20,000 to Danny Landina.[1] She said that they were paid from the $45,000 which she put into the term deposit; however, the debts amount to $55,000. The plaintiff said that she used the interest on the term deposit to make up the balance.
[1]The spelling may be incorrect
26 The defendant said that she paid the plaintiff $5,000, which she used to buy a VTR Holden Acclaim motor vehicle. The plaintiff agreed that she was given that sum, and indeed, the plaintiff and the defendant went together to purchase the motor vehicle. The defendant also said that she gave the plaintiff some of the deceased’s personal effects. The plaintiff agreed, but said that the defendant has retained significant quantities of jewellery which were in the possession of the deceased at the date of his death and were of significant value.
The Estate at the Commencement of the Proceeding
27 The defendant did not produce any other bank statements demonstrating the balance of the sum of $74,024.65 which has not been expended. Her bank statements disclose that as at 12 March 2010, there was a balance of $15,738.94 and as at 28 January 2011, there was a term deposit of $10,208.93.
28 The defendant should have retained the balance of the estate once she was served with the plaintiff's proceeding. What is clear is that she paid the sum of $5,000 to the plaintiff, but has failed to account for the use to which she put the balance of the monies. I infer from what bank statements she did produce, that she used the monies for her own purposes.
29 There are some disquieting aspects of the evidence given by the defendant. Firstly, she has failed to account for the whole of the deceased’s estate. She has not included in the inventory used to obtain probate, any reference to the personal effects of the deceased, and in particular, jewellery.
30 Secondly, the defendant says that she owns, as she described it, a unit. She gave the impression that it was her effort which went to paying off the whole of the unit when she only worked from time to time. The deceased worked most of the time until he suffered a serious injury in a transport accident.
31 Thirdly, I do not follow how it is that the defendant firstly mentioned the sum of $380,000 relevant to my question about whether the deceased made a damages claim, followed by her giving evidence that the deceased only received a little over $1,200. I understand the transport accident system in this State very well. Even if the transport accident was the plaintiff’s fault, he would have been entitled to a lump sum “no fault” payment for a whole person impairment, and if he obtained serious injury under the Transport Accident Act 1986 he would have been entitled to damages, and apparently he obtained a significant award of damages. He would not have been liable for his medical expenses because those would have been paid under the “no fault” system.
32 Overall, the evidence of the plaintiff and the defendant was wholly unsatisfactory. That was borne of the fact that they did not understand the nature of the proceeding before me, and what evidence was relevant. I make no criticism of them for that in any way. However, I am not satisfied that the defendant has brought forward all of the evidence that is relevant to determining the actual estate of the deceased. I am also not satisfied that the defendant gave accurate evidence of her assets and liabilities, enabling me to determine whether I should make any provision for the plaintiff’s maintenance and support balanced against the defendant’s own needs and entitlements.
Disposition
33 I am satisfied that as the daughter of the deceased, that the deceased owed her a duty to make proper provision for her maintenance and support.
34 The deceased made the following testamentary statement: “My daughter Shona Jean Virtue can share if she deserves it. On the day this was made she certainly didn’t.” I am not satisfied that the testamentary statements by the deceased in his Will relevant to the plaintiff should be interpreted in the manner contended for by the defendant. That is, they amount to an intention on the part of the deceased to exclude the plaintiff entirely. Part IV of the Act requires me to take such a statement into account, but it is to form part of the evidence and not something which overrides other relevant considerations.
35 I accept the plaintiff's evidence that she was somewhat reconciled with the deceased before he died. I have considered each of the matters referred to in s91(4)(e)-(p) of the Act in determining that there was not only a responsibility owed by the deceased to the plaintiff, but that he was in breach of his moral duty to make proper provision for her maintenance and support. I think the matters I have referred to in the body of these reasons adequately address the considerations under s91(4)(e)-(p).
36 Firstly, I draw an adverse inference against the defendant for failing to produce all the relevant evidence for the purpose of me being satisfied of the constitution of the estate. I do not accept, even though the plaintiff was self represented and a person of modest background, that she would not have understood her obligation, particularly when regard is had to the order of Judge Anderson. Her failure in the end is to the prejudice of the plaintiff, because all I am left with is her evidence that debts were owed to two men, and that the debts have been paid, and there is only $5,000 remaining of the sum of $74,024.65.
37 The adverse inference I draw is that the defendant has not proved such a level of a competing moral claim which should see the plaintiff’s claim fail. In the end, I consider that the plaintiff is in need, and indeed, desperate need. I consider that she should be paid the balance of the estate of $5,000.
Order
38 I make the following orders:
(1) That the Will of the deceased made 1 May 2002 be amended to read:
“I give the residue of my estate not otherwise disposed of to Kerry Francis Trafford and a legacy of $5,000 to my daughter Shona Jean Virtue.”
(2)The defendant pay to the plaintiff the sum of $5,000 by 28 September 2012.
(3)The defendant surrender the Probate parchment to the Associate to Judge Misso by 28 September 2012.
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