Watson v Watson
[2009] VCC 1773
•11 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
COMMERCIAL
FAMILY PROPERTY DIVISION
Case No.CI-08-02531
IN THE MATTER of the Will and Estate of JAMES GEORGE WATSON, deceased
- and -
IN THE MATTER of Part IV of the Administration and Probate Act 1958
BETWEEN:
| PAUL WATSON | Plaintiff |
| (who brings this proceeding by his Administrator, State Trustees Limited) | |
| v | |
| JUDITH WATSON | Defendant |
| (who is sued as the Executor of the Will of JAMES GEORGE WATSON, deceased) | |
| AND |
Case No.CI-09-02728
IN THE MATTER of the Will and Estate of JAMES GEORGE WATSON deceased
- and -
IN THE MATTER of Part IV of the Administration and Probate Act 1958
BETWEEN:
| DOROTHEA MABEL WATSON | Plaintiff |
| (who brings this proceeding by her Administrator, FTL Judge & Papaleo Pty Ltd) | |
| v | |
| JUDITH WATSON | Defendant |
| (who is sued as the Executor of the Will of JAMES GEORGE WATSON, deceased) |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 and 8 December 2009 |
| DATE OF JUDGMENT | 11 December 2009 |
| CASE MAY BE CITED AS: | Watson v Watson |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1773 |
| First Revision 18 December 2009 |
REASONS FOR JUDGMENT
---
Catchwords: TESTATOR'S FAMILY MAINTENANCE – application by adult son and application by the widow of the deceased – whether testator had made provision for the proper maintenance and support of his son and widow: Section 91(1), (3) and (4) Administration and Probate Act 1958
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff Paul Watson | Mr A Dickenson | State Trustees Limited |
| For the Plaintiff Dorothea Watson | Ms L Engelfield | Aitken Partners |
| For the Defendant | Ms E Konstantinou | George Defteros Lawyers |
| HIS HONOUR: |
Introduction
1 James George Watson died on 21 August 2007. He left a last Will and Testament made 29 July 2004. He appointed Judith Watson as executor of his Will and trustee of his estate.
2 The deceased made a bequest to Paul Watson of $8000. He gave the balance of his estate to Judith Watson as executor to hold it on trust for Dorothea Watson during her lifetime. Upon the death of Dorothea Watson, he gave the balance of his estate absolutely to Judith Watson.
3 The deceased was married to Dorothea Watson for close on sixty five years. Judith Watson is the daughter of the deceased and Dorothea Watson. She was born on 27 January 1951. She is now fifty eight years of age. Paul Watson is the son of the deceased and Dorothea Watson. He was born on 8 March 1957. He is now fifty two years of age.
4 Paul Watson commenced a proceeding by Originating Motion filed 25 June 2008 seeking such provision for his proper maintenance and support as the Court considered appropriate.
5 Dorothea Watson commenced a proceeding by Originating Motion filed 18 June 2009 seeking the same relief.
6 Mr A Dickenson of counsel appeared for Paul Watson, Ms L Engelfield of counsel appeared for Dorothea Watson and Ms E Konstantinou of counsel appeared for Judith Watson.
7 The following evidence was adduced at the trial:
Paul Watson's Case:
• Paul Watson gave evidence and was cross-examined. • Paul Watson tendered: ƒ the affidavit of Peter Misale sworn 6 October 2008 with exhibits
"PM-1" -"PM-4": Exhibit P1/A
ƒ the affidavit of Peter Misale sworn for December 2009 with exhibit
"PM-6": Exhibit P1/Bƒ a client budget dated 7 December 2009: Exhibit P1/C.
Dorothea Watson's Case
• Luigi Adrian Papaleo gave evidence and was cross-examined. • Dorothea Watson tendered:
ƒ the affidavit of Luigi Adrian Papaleo sworn 5 October 2009 with
exhibits "LAP-1"- "LAP-26": Exhibit P2/A
ƒ the report of Rolf Imberger & Associates Pty Ltd dated 7 December
2009: Exhibit P2/B.
Judith Watson's Case
• Judith Watson gave evidence and was cross-examined. • Judith Watson tendered:
ƒ her affidavit sworn for December 2008: Exhibit 1 ƒ an inventory of assets and liabilities: Exhibit 2.
The Issues
8 At the commencement of the proceedings counsel invited me to hear both proceedings at the same time and to rely on the evidence in one proceeding as the evidence in the other. I considered that to be an entirely appropriate course to take.
9 Ms Konstantinou submitted that in relation to Paul Watson, liability to make provision for him was denied, and alternatively, if I found that the deceased owed him a responsibility, that he was guilty of conduct which disentitled him to any provision out of the estate of the deceased.
10 Ms Konstantinou submitted that in relation to Dorothea Watson, that the deceased had made adequate provision for her.
11 However, after each party had closed their case, Ms Konstantinou informed me that Judith Watson had instructed her that the only issue to be determined by me was the quantum of the provision for the proper maintenance and support of Paul Watson and Dorothea Watson.
12 The Judith Watson is to be commended for having made an appraisal of the evidence and to have given Ms Konstantinou those instructions. It occurred to me, after hearing all of the evidence and reading the affidavits and exhibits, that it was inevitable that the proceedings would be reduced to that single issue.
13 As a result of the proceedings being reduced to a single issue, it is not necessary for me to traverse the facts with as much detail as would have been the case if all issues were still alive.
The Deceased's Estate
14 The inventory of assets and liabilities prepared by Judith Watson describes the estate of the deceased and the value of its assets as follows:[1]
[1] Exhibit 2
•
A property at 1A Dunbar Avenue, Caulfield. Judith Watson had the property valued through a kerbside valuation conducted on 3 December 2009 by a Valuer. The valuation estimated that the value of Dunbar Avenue is $1,150,000.
• The personal estate comprises:
ƒ a balance in a Westpac banking account of $271.42. ƒ 2000 Toyota Corolla car valued at $2750.
• A share portfolio comprising:
ƒ 1000 AMP shares valued at $6,220. ƒ 1000 Telstra Corporation shares valued at $3475. ƒ 1300 Westpac Banking shares valued at $31,687.51.
15 The value of all the assets amounts to $1,195,156.92. However, Mr Dickenson and Ms Engelfield submitted that the value of the deceased’s estate should be valued differently.
16 I was referred to the valuation conducted by Rolf Imberger & Associates Pty Ltd. It is a comprehensive valuation undertaken by Mr Imberger who describes himself as a Certified Practising Valuer. No issue was taken that he was other than well qualified to value Dunbar Avenue.
17 Mr Imberger valued Dunbar Avenue at $1 million. After some discussion with counsel, they submitted that I should accept that valuation in preference to the kerbside valuation relied upon by Judith Watson.
18 Both Mr Dickenson and Ms Engelfield referred to the inventory of assets and liabilities relied upon by Judith Watson when she proved the Will of the deceased on 28 December 2007.[2] It discloses that there was $31,233.49 in a Westpac banking account and $21,044.24 in a term deposit (totalling $52,782.23).
[2] Exhibit "PM-3" to the affidavit of Peter Misale sworn 6 October 2008
19 The recent inventory of assets and liabilities demonstrates that the foregoing sum is now only $271.42. Judith Watson was cross-examined at some length in an attempt to discover the whereabouts of the missing money. I was not satisfied that the moneys were used for a legitimate purpose by Judith Watson.
20 The only explanations given by Judith Watson for the disappearance of the money were some modest purchases made by her for the benefit of Dorothea Watson, and the payment of legal fees. However, her evidence regarding what legal fees she paid was confused. She appeared to me to fudge the issue whether the payment of those legal fees were her own legal fees or legal fees incurred for legal work undertaken for the estate of the deceased.
21 Furthermore, Judith Watson admitted that she has lived in the property since the death of the deceased. She also admitted that she was ordered, through a proceeding at VCAT, to pay rent in the sum of $400 per month. She said that she recently paid $1600 into an account operated for the benefit of the estate of the deceased, however, there is no account referred to in the inventory of assets and liabilities showing a deposit of that magnitude.
22 The deceased died on 21 August 2007 which is just over twenty seven months ago. Judith Watson should have paid at least $10,800 in rent. Again, there is no account referred to in the inventory of assets and liabilities consistent with moneys of that order being deposited to the benefit of the estate of the deceased.
23 Mr Dickenson and Ms Engelfield submitted that Judith Watson has denuded the estate of the moneys from the Westpac banking account and in the fixed deposit of least $52,000, and has failed to pay at least $10,800 in rent. They both submitted that Judith Watson should have added the moneys which she owes to the estate of the deceased in the inventory of assets and liabilities.
24 The only conclusion I can reach from the unsatisfactory evidence of Judith Watson is that she has unlawfully dealt with moneys of the estate of the deceased for her own benefit, and has failed to pay the rent which she is obliged to pay. The total is approximately $62,800.
Paul Watson
25 Paul Watson is now fifty-two years of age. He lives alone in a flat in South Caulfield. He rents the flat from the Ministry of Housing. He has occupied the flat for the last six-and-a-half years. He is unemployed. His only source of income is a disability pension.
26 In about 1998, he was the victim of a severe bashing. He suffered brain damage. In addition to the injuries he suffered as a result of the bashing, he has suffered from a significant mental illness over a large part of his adult life.
27 Peter Misale exhibited a folder containing some of the medical records of Paul Watson.[3] They disclose that on 21 August 2002, he was admitted to the Monash Medical Centre in Clayton as an inpatient. He was discharged on 17 September 2002. He was diagnosed as suffering from increased manic behaviour with psychotic episodes. The clinical notes reveal that he had a previous history of bipolar affective disorder with psychotic features.
[3] Exhibit "PM-6" to the affidavit of Peter Misale sworn before December 2009
28 Paul Watson has no property. He has no source of income other than the disability pension. He was married. He has children of his marriage. He does not obtain any financial support from his former wife or his children.
29 I observed Paul Watson during the time he gave evidence, and while he sat in the back of the court room during the two days of trial. What impressed me about him were his ravaged features. He looks much older than his chronological years. His facial features were those of a man ravaged by ill- health and substance abuse. He spoke with a lisp produced by the absence of many of his front teeth.
30 Ms Gina Robinson, consultant/director of ARNICA Community Cared Consultancy Services was engaged to make an assessment of Paul Watson on 12 April 2008, on referral by a solicitor with the litigation department of State Trustees Limited. She prepared a lengthy report following her assessment of Paul Watson.[4]
[4] Exhibit "PM-4" to the affidavit of Peter Misale sworn 6 October 2008
31 In the course of making her assessment, Ms Robinson reviewed Paul Watson's family history; his mental health history; his present accommodation situation; his interpersonal skills (including cognition and communication); his general health; his adaptive living skills (including personal care and activities of daily living), and his social and recreational supports and current support networks.
32 It is obvious from the assessment made by Ms Robinson that Paul Watson has suffered from mental illness since 1996 when he was diagnosed with bipolar affective disorder. She recommended he be provided with a home, furniture, medical and dental care, a car and the opportunity to enjoy social and recreational pursuits.
33 Ms Robinson provided a costing relevant to the provision of a home and each of the other matters she referred to which amounted to $609,000. Mr Dickenson did not rely upon that costing exercise. Indeed, Ms Konstantinou consented to the tendering of Ms Robinson's report on the footing that I was not to give any weight to the costing exercise Ms Robinson undertook.
34 The conclusion I have reached is that Paul Watson is living in substandard circumstances with little or no income. He has very little connection with family and friends. Indeed, he described his existence as being reclusive over the last ten years or so.[5]
[5] Transcript 31
Dorothea Watson
35 Dorothea Watson was born on 1 February 1923. She is eighty-six years of age. She is a resident at the Scottvale Aged Facility in Dandenong. She has been a resident at that facility since early 2008.
36 Judith Watson swore an affidavit on 4 December 2008 in which she described what her father, mother and siblings were like, and the problems that they all encountered over their lives.
37 To describe the life in the Watson household as being sad is an understatement. The deceased was an alcoholic. Dorothea Watson suffered from a mental illness and was violent and irrational. Rodney, who was born on 15 March 1944, died at birth. Jillian, who was born on 9 July 1947, died on 19 June 1986 as a result of alcoholism.
38 The relationship between the deceased, Dorothea Watson, Judith Watson and Paul Watson was marked by violence, alcohol and drug abuse, mental illness and financial hardship. The difficulties which Judith Watson and Paul Watson experienced in their lives appears to have extended into the lives of their spouses, partners and their own children.
39 Judith Watson deposed to an incident which occurred on 3 September 2007 when her mother was admitted to the Baringa Aged Psychiatry Inpatient Unit as an involuntary patient due to having cognitive deficits, poor insight and judgment, limiting her capacity to manage her finances and make lifestyle decisions.
40 Judith Watson exhibited a number of medical reports which confirm that Dorothea Watson was in a parlous state of mental health by 2007, and very probably over a large part of her adult life.[6]
[6] Exhibit 1, and in particular paragraphs 137-159
41 Ms Melanie Atkins, principal facilitator of The Journey Place for Living and Learning, assessed Dorothea Watson on 8 July 2009 at the Scottvale Aged Facility at the request of FTL Judge & Papaleo Pty Ltd, which is Dorothea Watson’s administrator.[7]
[7] Exhibit "LAP-9" to the affidavit of Luigi Adrian Papaleo sworn 5 October 2009
42 Ms Atkins described the Scottvale Aged Facility in glowing terms. She described it as a new facility where Dorothea Watson is well looked after. Mr Atkins observed that Dorothea Watson requires assistance with all personal care; is incontinent; has swallowing difficulties requiring her food to be vitamised, but is able to feed herself with prompting, and requires all domestic tasks to be undertaken for her.
43 Ms Atkins also observed that Dorothea Watson rarely goes out except on group outings. She requires the use of a wheelchair if she walks long distances.
44 Mr Atkins made a number of recommendations relevant to providing Dorothea Watson with comfort and pleasure over the balance of her life. She recommended additional physiotherapy; the provision of aids such as lifting equipment, specialised pressure mattresses and a supporting chair; provision of personal items such as face and skin-care; provision of suitable clothing; provision of an attendant care worker to provide her with the means to go on walks, outings, to sit in the garden and to encourage her in conversation; provision of weekly massage to her face and hands, and provision of a wheelchair and a comfortable armchair.
45 Ms Atkins provided an estimate of the cost of the provision of those matters which Ms Engelfield submitted amounted to $34,768 per annum.
46 Ms Engelfield submitted that the relevant life tables estimate that the life expectancy of a female of eighty-six years of age in 2009 is seven years. Ms Konstantinou consented to me receiving that estimate of life expectancy as part of Dorothea Watson's case.
Judith Watson
47 Judith Watson is now fifty-eight years of age. In her affidavit she also described her relationship with the deceased and Dorothea Watson. I accept that she had a close relationship with the deceased, and a caring relationship with Dorothea Watson.
48 It was very evident to me that she has little or no regard for Paul Watson. On most occasions when she was asked questions about Paul Watson, or had the opportunity to make some comment about him, she rankled when speaking about him and showed considerable animosity towards him. It is obvious that they have no relationship of any kind.
49 Judith Watson has no property save for that provided by the deceased in his will. She receives a disability pension. She also suffers significant ill-health, suffering from arthritis, depression and anxiety, and restless leg syndrome. She suffers from insomnia. She continues to suffer from the residual effects of carpal tunnel syndrome with pain in her hands, wrists and elbows.
50 Judith Watson presently lives at Dunbar Avenue with Margaret Fraser, whom she described as being more like a mother or a grandmother to her. She has lived with Margaret Fraser for about twenty years or so. According to Judith Watson, Margaret Fraser has no assets of any kind and is also in receipt of a social security pension.
51 Misfortune seems to have plagued the Watson family. It plagued Judith Watson throughout her life in her matrimonial and other relationships and also in the life of one of her two children.
Findings of Fact
52 After the close of each case, it was very evident to me that there was little or no controversy between the parties.
53 Ms Konstantinou conceded that ultimately in the case of Paul Watson and Dorothea Watson, it was a matter for me to determine whether proper provision had been made or not by the deceased for their proper maintenance and support, and if not, to quantify what provision the deceased should have made.
54 Given the way in which these proceedings unfolded, I see no reason why I should not accept the evidence of Paul Watson and Dorothea Watson relevant to their present circumstances.
55 For the sake of completeness, I should say that I consider the evidence of Paul Watson to be entirely convincing. It occurred to me while I observed him giving his evidence, and after I had the opportunity to read the material in support of his case, that he has also been plagued by mental illness and is in both a parlous physical, mental and financial state.
Provision for Paul Watson
56 I find the provision made by the deceased for Paul Watson not to have been provision that a wise and just father would have thought it his moral duty to make in the interests of his son had he been aware of all of the relevant circumstances regarding his son.
57 The question of what provision should have been made is to be answered at the date of the death of the deceased,[8] and is to be answered according to the standard of a wise and just testator, in other words, according to the standards of a fair and reasonable man in the community.9 In answering that question, I am bound to have regard to the factors referred to in section 91(4) (e) to (o) of the Administration and Probate Act 1958.
[8] Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 505-508
58 I will now deal with each of the factors referred to in section 91 (4) (e) to (o),
which are relevant to Paul Watson.
(e) any family or other relationship between the deceased person and
the applicant, including the nature of the relationship and, where
relevant, the length of the relationship59 Paul Watson is the son of the deceased. No issue was taken regarding the unhappy relationship which he had with the deceased. In any event, I accept that Paul Watson continued to have a significant enough relationship with the deceased during periods when he was mentally unwell and required hospitalisation. There can be no doubt that the length of the relationship as between Paul Watson and the deceased was lifelong.
(f) any obligations or responsibilities of the deceased person to the
applicant, any other applicant and the beneficiaries of the estate60 The deceased plainly had an obligation and responsibility to Paul Watson. As a matter of law, it is well-established that a parent has an obligation and responsibility to a child. Likewise, the deceased had an undoubted obligation responsibility to Dorothea Watson in Judith Watson.
(g) the size and nature of the estate of the deceased person and any
charges and liabilities to which the estate is subject61 The size of the estate can fairly be described as moderate comprising the assets which I have already referred to. There are no charges or liabilities over the deceased's estate to which the estate is subject.
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future
62 Paul Watson has no financial resources. He has undoubted needs. Dorothea Watson has some modest investments, which I will refer to below. Apart from the provision in the deceased’s will, Judith Watson has no financial resources, except for a disability pension.
(i) any physical, mental or intellectual disability of any applicant or any
beneficiary of the estate63 There is no doubt that Paul Watson, Dorothea Watson and Judith Watson
White v Barron (1980) 144 CLR 431 at 456, and also Blair v Blair [2004] VSCA 69 at 84
have been ravaged by psychosocial problems which plagued their family. I
accept that they are each in poor health.
(j) the age of the applicant
64 Paul Watson is fifty-two years of age.
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased
65 Paul Watson did not make any contribution to building up of the estate of the deceased. He had a very unhappy relationship with the deceased. He did not add to the welfare of the deceased or the family of the deceased.
(l) any benefits previously given by the deceased person to any
applicant or to any beneficiary66 The only tangible benefit Paul Watson received from the deceased was the sum of $8,000 from the deceased's estate.
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility
67 The deceased did not maintain Paul Watson before his death.
(n) the liability of any other person to maintain the applicant
68 There is no other person who has a liability to maintain Paul Watson.
(o) the character and conduct of the applicant or any other person
69 No issue was taken that the character of Paul Watson, or any conduct of which he was guilty, suggested that he should be disentitled to provision from the estate of the deceased.
(p) any other matter the Court considers relevant.
70 There are no other matters which I consider to be relevant, nor were any raised by the parties.
71 The conclusion I have reached is that the deceased was unwise and unjust and was in breach of his moral duty in not making provision for the proper maintenance and support of Paul Watson.
72 The deceased must have known that Paul Watson was mentally unwell, and certainly that was the case when he was admitted to the Monash Medical Centre on 21 August 2002. The medical records of his inpatient treatment note that the deceased was present and spoke to staff at the Monash Medical Centre regarding Paul Watson's illness and his welfare.
73 For the deceased to have provided Paul Watson with only $8000 falls far short of the responsibility he had to make provision out of his estate for the proper maintenance and support of Paul Watson.
74 A wise and just testator would have considered that because Paul Watson has a long-term mental illness and consequent incapacity for work that he would need a home to live in and some financial resources to provide him with some comfort and pleasure over the balance of his life.
Provision for Dorothea Watson
75 I find that the provision made by the deceased for Dorothea Watson not to have been provision that a wise and just husband would have thought it his moral duty to make in the interests of his wife had he been aware of all of the relevant circumstances regarding his wife.
76 I will now deal with each of the factors referred to in section 91(4)(e) to (o),
which are relevant to Dorothea Watson.
(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship
77 Dorothea Watson was the wife of the deceased. Although their married life was tumultuous, and no doubt interrupted by Dorothea Watson’s mental illness, they nonetheless lived at Dunbar Avenue as man and wife for close on sixty-five years. The deceased cared for Dorothea Watson by seeing to her welfare and her financial independence.
(f) any obligations or responsibilities of the deceased person to the
applicant, any other applicant and the beneficiaries of the estate78 The deceased plainly had an obligation and responsibility to Dorothea Watson. As a matter of law it is well-established that a husband has an obligation and responsibility to his wife. Likewise, the deceased had an undoubted obligation and responsibility to Paul Watson and Judith Watson.
(g) the size and nature of the estate of the deceased person and any
charges and liabilities to which the estate is subject79 I have dealt with this consideration adequately in paragraph 61 above.
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future
80 The only financial resources which Dorothea can call upon are the sum of $56,016.97 invested by her administrator,[10] and a pension.
[10] Exhibit P2/A - paragraphs 12-13 of the affidavit of Luigi Adrian Papaleo sworn 5 October 2009
81 Ms Konstantinou submitted that the deceased made provision for the proper maintenance and support of Dorothea Watson in his will. I do not accept that submission.
82 It became very obvious during the cross-examination of Judith Watson that she has used moneys belonging to the estate of the deceased for her own benefit. Those monies should have been applied for the benefit of the Dorothea Watson.
83 I am not satisfied that Judith Watson is as interested in the welfare of Dorothea Watson she makes out. She has not provided any moneys from the estate of the deceased to Dorothea Watson's administrator for her maintenance and support.[11] She has not visited Dorothea Watson since May 2009, some seven months ago. It must follow that because she has not visited her that she would have little idea of Dorothea Watson’s needs over the last seven months.
[11] Transcript 129-130
84 Furthermore, she gave evidence, which I consider to be very troubling, concerning her view of her Dorothea Watson's needs. The following answer was given by her when she was asked to explain her view about whether her mother needed any of the matters referred to by Ms Atkins:
"My mother was very out of it, very - she was simple, she didn't want anything, she doesn't want - she did her own thing, she wanted space, she was a loner in her way, she had no needs for anything, she didn't - she was never wanted - she never would accept things like that. It is against her - she goes to the point of craziness with things, you would have to live with my mother and the mental - the circumstances to have an understanding, a proper understanding of how her mind works and she works and - "[12]
[12] Transcript 143
85 Judith Watson has not discharged her obligation as executor by taking money from the estate of the deceased and using it for her own benefit. She has not discharged her obligation as trustee by not providing Dorothea Watson's administrator with any funds to be applied for the benefit of Dorothea Watson. Lastly, she does not appear to have any insight into Dorothea Watson's needs.
86 I have no doubt that Dorothea Watson has needs which are not being adequately met out of the estate of the deceased. I see nothing unreasonable in the opinion of Ms Atkins regarding the matters which she considered would be of benefit to Dorothea Watson to make her life more comfortable and pleasurable over the balance of her life.
87 There is no doubt that Paul Watson and Judith Watson are also in need.
(i) any physical, mental or intellectual disability of any applicant or any
beneficiary of the estate88 I have dealt with this consideration adequately in paragraph 63 above. (j) the age of the applicant
89 Dorothea Watson is eighty-six years of age.
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased
90 There was little evidence whether Dorothea Watson made any contribution to the building up the estate of the deceased, save the fact that she was his wife for close on sixty-five years, and the mother of his children. The contribution in that regard cannot be underestimated as being an indirect contribution to the building up of the deceased estate.
(l) any benefits previously given by the deceased person to any
applicant or to any beneficiary91 I have dealt with this consideration adequately in paragraph 68 above.
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility
92 All of the evidence points to the deceased having maintained Dorothea Watson wholly during their married life and up to the date of his death.
(n) the liability of any other person to maintain the applicant
93 There is no other person who has a liability to maintain Dorothea Watson. (o) the character and conduct of the applicant or any other person
94 There is no evidence to suggest that the character and conduct of Dorothea Watson is in issue.
(p) any other matter the Court considers relevant
95 There are no other matters which I consider to be relevant, nor were any raised by the parties.
Conclusions
Paul Watson
96 Ms Konstantinou I did not choose to specifically address any of the considerations under section 91(4)(e)-(o). In any event, I can see no basis upon which I should not make an order in favour of both Paul Watson and Dorothea Watson for their proper maintenance and support out of the estate of the deceased.
97 Ms Konstantinou submitted that there was insufficient evidence upon which I could determine what order should be made in favour of Paul Watson.
98 This submission focused upon the opinion of Ms Robinson and the costing she provided. However, it is trite to say that a trial judge is entitled to make an order by settling on an amount which the trial judge considers a wise and just testator would have provided in his will.
99 This very issue was considered in Blair v Blair (supra).[13] The trial judge was criticised for “plucking a figure out of the air”. However, Chernov JA reviewed the analysis of the trial judge and considered that he had engaged in a careful analysis of the relevant matters required to be considered pursuant to section 91(4)(e)-(o). He relevantly observed:
"While it is the case that his Honour did not provide an arithmetic basis for reaching this sum, he nevertheless explained, as I have noted and as was accepted by the appellant in his written outline of submissions, that the judge sought to quantify the additional amount by reference to the approximate sum that would be necessary to put the respondent in a position ‘roughly equivalent with [the appellant] in the amount of the provision each received from his parents for his maintenance and support’. Importantly, his Honour recognised, rightly, I think, that, in the circumstances, ‘[e]xactness in the calculation of [the relevant amount] is impossible’. Similarly, his Honour acknowledged that ‘in these things, perfect equality is likewise impossible, and for that reason the attempt to maintain it might even be unwise’. Thus, it is not surprising that, as appears from his Honour’s reasons, his determination of the additional sum involved the application of an instinctive synthesis, a process that has been approved by this court in like cases where an arithmetic calculation was not possible. But, I do not accept the appellant’s underlying contention that his Honour arrived at the sum of $200,000 by ‘plucking a figure out of the air’. It is apparent from the judge’s reasons that the amount was arrived at by him after a careful analysis of the relevant matters that were required to be considered pursuant to s 91(4)(e)–(p). His Honour was plainly concerned to identify, in broad terms, the amount which would allow the respondent an equal start in life to that enjoyed by the appellant by reason of assistance provided to him by the testator. It also seems clear enough from his Honour’s reasons that he recognised that this amount could not be calculated in an arithmetic sense, and the contrary was not argued for the appellant. In arriving at the relevant amount his Honour had regard to matters to which reference has already been made, including the familial relationship, the respective financial position of the brothers, and the assistance provided to each by the testator. In the end, however, the learned judge had to settle on an amount which, in his view, the deceased, as a wise and just testator, would have provided in his will as a legacy for the respondent. In the circumstances, I think it is plain that his Honour discharged the obligation to give reasons for his decision that the legacy in favour of the respondent be increased to $200,000, as that requirement has been explained in cases such as Sun Alliance v Massoud Insurance Ltd, Cropp v Transport Accident Commission, Director of Public Prosecutions v Suckling, Garrett v Nicholson22 and Perkins v County Court of Victoria. I mention for completeness that, once his Honour resolved the jurisdictional questions in favour of the respondent, what additional amounts should be ordered in his favour was a matter that involved an exercise of discretion by the learned judge. In my view, the appellant has not established that his Honour erred in principle in that regard or that the decision is plainly wrong. In the circumstances, I consider that this complaint has no substance."[14]
[13] (supra)
[14] At 81-82. All the approach taken by Nettle J (as he then was) in McKenzie v Topp [2004] VSC 90, and particularly at paragraphs 63-67
100 Applying standards of today, it is difficult to accept that a wise and just testator would want to see his son occupying a Ministry of Housing flat, which I infer probably constitutes a very basic form of accommodation. I also infer that living in such circumstances would probably subject Paul Watson to hardship and indignity.
101 The deceased would have wanted Paul Watson to have been housed for the rest of his life in an environment of no less quality than he would have had if he had not suffered mental illness than was provided for by the deceased at Dunbar Avenue, and to have provided him with sufficient funds for him to have derived some modest comfort and pleasure over the balance of his life.
102 Mr Dickenson estimated that the costs of the proceeding would probably amount to $100,000. Leaving aside the amounts in a banking account, share investments and the amounts owed to the estate by Judith Watson, it leaves about $900,000 in the estate. It is a not insignificant sum.
103 In the end, I conclude that the deceased, as a wise and just testator would have made provision for Paul Watson sufficient for him to at least purchase a modest dwelling in which he could live independently.
104 After considering the evidence of Paul Watson, and giving due regard to each of the considerations in section 91(4)(e)-(o), I consider that there should be an order for provision in his favour out of the estate of the deceased by way of a lump sum of $300,000.
Dorothea Watson
105 Ms Konstantinou made a similar submission in relation to Dorothea Watson that proper provision had been made by the deceased for her maintenance and support.
106 If Judith Watson had not taken money from the estate of the deceased and applied it for her own benefit, and had paid the rent as she was ordered to do, and had paid that income from the estate to Dorothea Watson’s administrator for her maintenance and support, then there might be some merit in that submission.
107 The conduct of Judith Watson leaves Dorothea Watson in a very vulnerable position. It is abundantly clear to me that if the present situation is allowed to prevail, Dorothea Watson will never obtain the benefit from the deceased estate which he wanted her to have.
108 Returning to what was said by Chernov JA in Blair v Blair (supra),[15] it is for me to settle upon an amount which the deceased, as a wise and just testator, would have provided for Dorothea Watson.
[15] (supra)
109 The evidence which I accept is that at eighty-six years of age Dorothea Watson has a probable life expectancy of a further seven years. However, I accept the submission made by Ms Englefield that Dorothea Watson may survive for much longer. It may be that she will not survive as long as seven years.
110 I accept the evidence of Ms Atkins that Dorothea Watson would benefit significantly from the provision of the matters she referred to in her report and in her evidence. None of them are extravagant, but rather modest matters which will provide her with some comfort and pleasure over the balance of her life.
111 I accept that the estimate of $34,768 per annum to be entirely reasonable. I consider that it is reasonable to provide that sum over the next seven years which amounts to $243,376. Dorothea Watson has a sum of $56,016.97 available to her which is invested by her administrator. Added together they total $299,392.97.
112 Ms Konstantinou submitted that I should exercise caution in making an order for provision out of the estate of the deceased for Dorothy Watson given what was said by Mason J in White v Barron,[16] that making provision for a widow, who is not young, of a substantial sum may result in substantial benefit to her relatives in the event of her early death, contrary to the wishes of the wishes of the testator.[17]
[16] (supra)
[17] at 444-445
113 I am mindful that in the exercise of discretion I must determine what provision is proper for the maintenance and support of Dorothea Watson by making a judgment which is both objective and conservative, and to that end the observations made by Mason J are relevant in the exercise of that discretion.
114 I consider that a further sum on top of $243,376 to bring it up to $300,000 is consistent with what the deceased, as a wise and just testator, would have made as provision for Dorothea Watson to cover her for all likely contingencies which might arise.
115 After considering the evidence adduced on behalf of Dorothea Watson, and giving due regard to each of the considerations in section 91(4)(e)-(o), I consider that there should be an order for provision in her favour out of the estate of the deceased by way of a lump sum of $300,000.
Judith Watson
116 The provisions for Paul Watson and Dorothea Watson amount to $600,000, leaving $300,000, a small balance in the Westpac banking account, a share portfolio, and a car of modest value.
117 I consider that the balance of the estate of the deceased should revert to Judith Watson. It gives due account to the intention of the deceased expressed in his will in which he declared that the bequest to Judith Watson was in recognition that she had, during his lifetime, given him a great deal of support and contributed towards the upkeep and maintenance of his home.
118 It effectively means, that after the payment of costs, Judith Watson will receive $300,000 plus the balance in the Westpac banking account, the car and $41,392.51 (subject to the orders referred to below), being the current value of the share portfolio. She will also retain the benefit of the moneys which she has taken from the estate of the deceased.
Orders 119
The orders which I propose to make to give effect to the conclusions I have reached will necessitate the sale of the property at Dunbar Avenue.
120
The orders will also necessitate the payment of the costs of sale and the legal costs associated with the conveyance of Dunbar Avenue, and other costs associated with winding up the deceased’s estate.
121
I propose that the costs just referred to be paid from the liquidation of the share portfolio with the balance then to revert to Judith Watson.
122
I propose that counsel consider the form of the orders and to submit them for my approval and to make any further submissions which are relevant to the formulation of the orders.
Addendum
123 I published my reasons for judgment on 11 December 2009. I made a request of counsel that they formulate the orders which reflected the conclusions I reached in the proceedings.
124 I adjourned the proceeding to 15 December 2009. On that occasion, I was informed by counsel that the solicitor/client costs of Paul Watson and Dorothea Watson were approximately $35,000 each, and that the Judith Watson's costs were approximately $78,000. The total costs amounted to approximately $148,000.
125 I expressed my concern at the amount of Judith Watson's costs, and in particular, whether those costs had been incurred only in the defence of the proceedings.
126 I express my further concern that if I made orders fixing costs in those sums that it would inevitably result in Judith Watson receiving less from the estate of the deceased that I intended her to obtain. I informed counsel that they should have turned their minds to the question of costs more seriously rather than leaving the consideration of that important issue to a date following the publishing of my reasons for judgment.
127 If I had been informed that the costs were so significant then I would have gone about making provision for the proper maintenance and support of Paul Watson and Dorothea Watson differently.
128 Mr Dickenson submitted that I could make an order that Paul Watson, Dorothea Watson and Judith Watson receive one-third of the net estate of the deceased and bear their own costs. Counsel all considered that an order of that kind would be appropriate. However, Ms Konstantinou informed me that she needed to obtain instructions from Judith Watson.
129 In the course of the afternoon of 15 December 2009, counsel communicated with my associate. As a consequence of those communications, I listed the matter for further hearing on 16 December 2009. On that occasion, Mr Dickenson appeared for Paul Watson. Ms Wilson, solicitor, appeared for Dorothea Watson. Ms Konstantinou appeared for Judith Watson.
130 Ms Konstantinou informed me that Judith Watson had withdrawn her instructions and those of her instructing solicitor. Judith Watson was present. I asked her whether she had in fact withdrawn her instructions and whether she consented to the application. She acknowledged that she had in fact withdrawn her instructions and said she had nothing further to add.
131 Judith Watson then appeared unrepresented. After hearing further submissions, I considered that because the estimate of costs now amounted to approximately $148,000.00, that to make the orders I contemplated making would very probably work a serious unfairness to her. I informed counsel that I intended to have the orders reflect legacies to Paul Watson and Judith Watson of one-third each of the net estate of the deceased, and, of course, the remaining one-third to Judith Watson, with all parties to bear their own costs.
132 After hearing submissions on both 15 and 16 December 2009 relevant to the form of orders, I unhappily reached the conclusion that because of the conduct of Judith Watson in seriously failing to discharge her duties as executor and trustee of the estate of the deceased properly, that she could not be trusted to undertake the winding up of the estate of the deceased consistently with the orders I intended to make.
133 Therefore, I decided to make orders pursuant to section 96(2) of the Act to take the winding up of the estate of the deceased out of the hands of Judith Watson, and to authorise Dorothea Watson's administrator, and the solicitors retained on her behalf, to wind it up.
134 I subsequently published my reasons for judgement with this addendum to each of the parties.
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