Whitehead v State Trustees Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 8802

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

and

IN THE MATTER of the will and estate of BARRY ROBERT SAMSON (deceased)

KIM DIANE WHITEHEAD	First plaintiff
ALEX WILLIAM WHITEHEAD (by his litigation guardian LORRAINE WHITEHEAD)	Second plaintiff
v
STATE TRUSTEES LIMITED (ACN 064 593 148) (as the executor of the will of the deceased)	Defendant

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2, 3 and 6 December 2010
DATE OF JUDGMENT:	2 September 2011
CASE MAY BE CITED AS:	Whitehead v State Trustees Limited
MEDIUM NEUTRAL CITATION:	[2011] VSC 424	1^st revision: 19 October 2011

TESTATOR’S FAMILY MAINTENANCE – claim by intimate female companion of deceased and child by another man – deceased promised to support woman and help her care for child if she took pregnancy to full term – deceased older, never married and had no children of his own – deceased and woman became engaged to be married – deceased treated child as a son – child saw deceased as ‘bestest dad in the whole world’ – thirty year old will – relationship between woman, child and man represented social unit tantamount to family – whether deceased has moral responsibility for proper maintenance and support of woman and child – Administration and Probate Act 1958 (Vic), s 91(1), (2), (3) and (4).

APPEARANCES:	Counsel	Solicitors
For the first plaintiff	Mr R N J Young	Zeljko Stojakovic, Barristers & Solicitors
For the second plaintiff	Mr M McKenzie	Rosemarie Ryan Lawyers
For the defendant	Mr A G Southall QC with Mr A Bolkas	Legal Branch, State Trustees

TABLE OF CONTENTS

INTRODUCTION........................................................................................................................... [1]

WILL OF BARRY SAMSON......................................................................................................... [5]

APPLICATION FOR PROPER MAINTENANCE AND SUPPORT................................... [10]

TESTATOR’S RESPONSIBILITY TO MAKE PROPER PROVISION.............................. [16]

Power of court........................................................................................................................... [16]
History of provisions............................................................................................................... [21]
Public policy objects and purposive interpretation........................................................... [30]
Freedom of testamentary disposition................................................................................... [35]
Moral responsibility of deceased to provide....................................................................... [42]
Persons for whom deceased had responsibility to make provision................................ [48]
Adequate provision for proper maintenance and support................................................ [51]
Prevailing community standards........................................................................................... [56]
Date at which consideration is given..................................................................................... [59]
Intentions of the deceased....................................................................................................... [64]
Character and conduct of persons.......................................................................................... [65]
Contributions to welfare of deceased.................................................................................... [68]

RELATIONSHIP BETWEEN KIM, ALEX AND BARRY...................................................... [74]

Critical issue in case................................................................................................................. [74]
Relationship between Kim and Barry................................................................................... [76]
Individuals concerned............................................................................................................ [76]
Barry............................................................................................................................... [76]
Kim................................................................................................................................. [82]
Alex................................................................................................................................. [87]
Authenticity of Kim’s diaries................................................................................................. [89]
Kim commences relationship with Barry............................................................................... [96]
Kim’s relationship with Rob, Ilia and Sam........................................................................... [104]
Alex’s birth and Kim and Barry’s engagement................................................................... [112]
Kim’s photograph at Barry’s home....................................................................................... [120]
Cards given by Barry to Kim............................................................................................... [124]
Kim and Barry’s separate finances and homes..................................................................... [127]
Proposed new house at Deverall Road, Sunbury................................................................. [132]
Kim’s death notice and affidavit........................................................................................... [137]
Kim’s drinking and smoking................................................................................................ [138]
What Kim, Barry and Alex shared....................................................................................... [142]
When Barry became ill......................................................................................................... [169]
Barry’s intended new will.................................................................................................... [178]
Kim and Barry: nature of the relationship............................................................................ [185]

Relationship between Alex and Barry................................................................................. [191]

Kim, Alex and Barry: nature of the relationship................................................................ [217]

SPECIFIC STATUTORY CONSIDERATIONS.................................................................... [221]

Three questions in issue........................................................................................................ [221]
Family or other relationship between deceased and applicant (s 91(4)(e))................... [223]
Obligations or responsibilities of deceased (s 91(4)(f)).................................................... [225]
Size and nature of estate (s 91(4)(g)).................................................................................... [228]
Financial resources and needs of applicant and beneficiaries (s 91(4)(h))..................... [235]
Kim...................................................................................................................................... [237]
Alex...................................................................................................................................... [241]
Margaret Roberts................................................................................................................. [247]
Keith Samson....................................................................................................................... [251]
Karen Samson...................................................................................................................... [254]
Christine Samson................................................................................................................. [259]
Steven Samson..................................................................................................................... [268]
Physical, mental or intellectual disability of applicant or beneficiary (s 91(4)(i))........ [272]
Age of applicant (s 91(4)(j))................................................................................................... [280]
Contributions of applicant to estate and welfare of deceased (s 91(4)(k))..................... [282]
Benefits previously given by deceased to applicant or beneficiary (s 91(4)(l))............ [293]
Maintenance of applicant by deceased and basis thereof (s 91(4)(m))........................... [298]
Liability of person to maintain the applicant (s 91(4)(n))................................................. [301]
Character and conduct of applicant and other people (s 91(4)(o)).................................. [306]
Other matters the court considers relevant (s 91(4)(p))..................................................... [310]

DETERMINATION OF APPLICATIONS FOR PROVISION............................................ [312]

Did Barry have a responsibility to make provision (s 91(1))?...........................................[312]
Like Cases............................................................................................................................. [312]
Kim...................................................................................................................................... [324]
Alex...................................................................................................................................... [328]
Did Barry's will make the required provision (s 91(3))?....................................................[332]
What amount of provision should the court order (s 91(4)(c))?...................................... [334]

CONCLUSION............................................................................................................................. [346]

HIS HONOUR:

INTRODUCTION

Kim Diane Whitehead and her young son Alex make application to the court for an order for provision from the estate of the late Barry Robert Sampson. Under the Administration and Probate Act 1958 (Vic), the court can make such an order where the deceased fails in their responsibility to make provision for the proper maintenance and support of a person. Kim and Alex say that is what Barry failed to do.

Barry never married and had no children. His will was over thirty years old and made no provision for Kim and Alex. It left his estate valued at some $2.1 million to two elderly living siblings and the children of one who had predeceased him.

Kim says she and Barry did not live together but were intimate, indeed engaged to be married, for nearly ten years until he died. Barry wanted to build a house for them. When Kim fell pregnant with Alex, he persuaded her to keep the child, although he was not the father. He promised to support Kim and help her care for Alex, which he did. Barry (who was about 28 years older than Kim) treated Alex like a son. Alex said Barry was the ‘bestest dad in the whole world’. Kim supported Barry when he became ill and tragically died from cancer, before acting on his expressed intention to make a new will in their favour. Their case is supported by evidence from Kim’s family, Barry’s best friend Lionel Withers and diaries which Kim kept during the course or their relationship.

The application to the court was opposed by the executor of the estate, State Trustees Limited, supported by the beneficiaries. On its case, Kim and Barry were nothing more than friends. He loved Alex only as he loved all children and felt sorry for him. State Trustees called evidence from Barry’s family, neighbours and friends and attacked the diaries as fraudulent. Finally, it contended that, even if Kim proved her relationship with Barry, they were not domestic partners. The relationship alleged between Kim, Alex and Barry was much less than those which had previously given rise to an order for provision under the legislation. Now to the will.

WILL OF BARRY SAMSON

The one and only will made by Barry was dated 12 December 1975. He intended to make a new will with provision for Kim and Alex, but he did not do so before he died. He appointed his brothers Keith Samson and Neil Samson to be executors. Neil predeceased Barry. Keith authorised[1] State Trustees to apply for probate, which was granted on 2 July 2009.
[1]Under s 10 of the Trustees Companies Act 1984 (Vic).

Barry never married and had no children of his own. By his will, Barry made provision for his estate to be realised and for the residue to be invested after meeting expenses. He left the income from the residue to his mother Eva Samson during her lifetime. Eva predeceased Barry.

In that event, the will required the residue of the estate to be divided between Keith, Neil and Barry’s other sibling, Margaret Schroeders (now Margaret Roberts), in equal shares. As Neil predeceased Barry, the will required his share to be shared equally between Neil’s children who were living at the time of Barry’s death, being Karen, Steven and Christine.

In the result, the beneficiaries under the will in equal one-third shares are Barry’s brother Keith, his sister Margaret and his nephews and nieces Karen, Steven and Christine, who share equally the one-third share of their deceased father Neil.

Barry was aged 32 years when he made the will. He did not meet Kim until 1998/1999 when he was about 56, and Alex was born on 4 April 2002. The will made no provision for them and there was no codicil.

APPLICATION FOR PROPER MAINTENANCE AND SUPPORT

Kim and Alex have made application for proper maintenance and support under Part IV of the Administration and Probate Act.

Kim is aged 41 years and makes the application on her own behalf. Alex is aged 9 years and makes application through his litigation guardian, Lorraine Whitehead, who is Kim’s mother and Alex’s grandmother. Kim and Alex were separately represented in the proceeding. While their applications are connected in certain ways, they must each be separately determined.

The defendant to the application is State Trustees in its capacity as the executor of Barry’s estate under the will. The beneficiaries have been given notice of the proceeding and most of them have given evidence.

In the hearing of the applications, the court received evidence by way of affidavits. On Kim and Alex’s side, the affidavits were from Kim (dated 3 September 2009, 21 December 2009, two dated 17 May 2010 and 26 January 2010), Lorraine (4 December 2009 and 19 May 2010), Paul Whitehead (Kim’s brother) (21 May 2010), Lisa Bedford (Kim’s sister) (27 May 2010), Lionel Withers (Barry’s best friend) (31 May 2010) and Hugh Sarjeant (an actuary) (3 November 2010). Kim, Lorraine, Lisa and Mr Sarjeant gave oral evidence and were cross-examined. Paul and Mr Withers did not.

On the defendant’s side, the court received evidence by way of affidavits from Jacqueline Shaw (of State Trustees) (23 June 2009), Terence Gray (a close friend of Barry’s) (18 January 2010), Margaret Roberts (Barry’s sister) (22 January 2010), Maureen Sanders (a friend of Barry’s) (25 January 2010), Raymond Schafer (a friend of Barry’s) (29 January 2010), Peter Schroeders (Barry’s nephew and the son of Margaret Roberts) (3 February 2010), Keith Samson (Barry’s brother) (3 February 2010), Karen Samson (a niece of Barry’s and a beneficiary) (21 April 2010), Christine Samson (Karen’s sister, a niece of Barry’s and a beneficiary) (27 April 2010), Roslyn Samson (the widow of Barry’s brother Neil and Barry’s sister-in-law) (27 April 2010), John Sanelli (of State Trustees) (1 June 2010), Michael Richards (of State Trustees) (28 October 2010 and 23 November 2010), Lee O’Shannassy (a good friend and neighbour of Barry’s) (18 February 2010) and Steven Samson (Karen and Christine’s brother, a nephew of Barry’s and a beneficiary) (31 March 2010). Keith, Mr O’Shannassy and Mr Richards gave oral evidence and were cross examined. The other witnesses did not.

At the conclusion of the hearing, the value of the estate had not been finalised as two properties were yet to be sold. By agreement between the parties, the court was later informed that the property at Gap Road, Sunbury was sold at auction for $1.55 million and the property at Deverall Road, Sunbury was sold for $605,000. In light of the results of these pending auctions, the parties were all given leave to make further submissions in relation to the value of the estate. No party did. Taking account of those sales, the value of the estate in round figures is $2.1 million.

TESTATOR’S RESPONSIBILITY TO MAKE PROPER PROVISION
Power of court

The power of the court to make an order for the proper maintenance and support of a person is specified in s 91(1) of the Administration and Probate Act, which provides:

Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

Under s 91(2), the court cannot make an order in favour of a person unless they make application for the order or someone makes application on their behalf. In the present case, Kim has made application for herself and Alex’s grandmother Lorraine has made application on behalf of him.

Under s 91(3), the court must not make an order unless (as relevant in this case) it is of the opinion that the distribution of the estate effected by the deceased’s will does not make adequate provision for the proper maintenance and support of the person. Barry left a will and it is the contention of Kim and Alex that it failed to make that provision.

In determining whether the deceased had a responsibility to make provision for a person, whether the will made adequate provision for the proper maintenance and support of a person and the amount of provision (if any) which should be ordered, s 91(4) requires the court to take account of the considerations specified in pars (e)‑(p).

State Trustees (supported by the beneficiaries) submit that Kim and Alex’s claims fall way outside even the extreme margin of relationships which might, under the statutory provisions, found a responsibility to make provision. It is therefore necessary to examine the scope of the court’s power to make an order and the principles which govern the exercise of that power.

History of provisions

The first family provision legislation enacted in Victoria was the Widows and Young Children Maintenance Act 1906 (Vic). As with similar legislation elsewhere in Australia,[2] Canada[3] and the United Kingdom,[4] the ‘forerunner’[5] to the Victorian legislation was the Testators Family Maintenance Act 1900 (NZ). As originally enacted, it permitted only widows and young children to make application and then only if the deceased had died 0testate. Like the analogous legislation elsewhere,[6] our legislation has been amended over time to allow a wider range of persons to make application and also to permit the court to make orders when the deceased has died intestate. That gradual process of reform has been described thus:

At first the legislation was regarded as a revolutionary (and perhaps improper) inroad on the power of a person to dispose of property as he or she saw fit and courts tended to be cautious in exercising their jurisdiction. With the passing years it has become clear that the court’s power extends far beyond providing for dependents who are destitute, and allows the court to make substantial distributions of assets in order to effectuate the moral duty of a testator to provide for any dependents.[7]

[2]See John de Groot and Bruce Nickel, Family Provision in Australia (3^rd ed, 2007) [1.6]-[1.7]; IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand (2^nd ed, 1989) [3501].

[3]See AH Oosterhoff, Oosterhoff on Wills and Succession (6^th ed, 2007) chapter 17.

[4]See Richard Oughton, Tylers Family Provision (3^rd ed, 1997) 19-32; Megarry and Wage, The Law of Real Property (7^th ed, 2008) [14.003]-[14.004].

[5]IJ Hardingham, MA Neave and HA Ford, Wills and Intestacy in Australia and New Zealand (2^nd ed, 1989) 482. In Coates v National Trustees Executors and Agency Co Ltd, Dixon CJ said the ‘legislation of the various States is all grounded on the same policy and found its source in New Zealand’: (1956) 95 CLR 494, 507.

[6]For an overview of the gradual expansion of the eligibility criteria, see John de Groot and Bruce Nickel, Family Provision in Australia (3^rd ed, 2007) [1.5]-[1.7];

[7]Ibid.

The current provisions of Part 4 of the Administration and Probate Act were introduced by Part 7 of the Wills Act 1997 (Vic). Before being amended, the provisions permitted an application for ‘proper maintenance and support’ to be made by ‘the testator’s widow widower or children’ (s 91). There were no criteria specified for the exercise of the court’s ‘discretion’ (s 91) to make an order for such provision, although authority of longstanding required the court to be guided by the moral claims of the applicant (see below).

Prior to the enactment of the 1997 amendments, the Standing Committee of Attorneys-General gave consideration to Australian succession law. In 1991, the committee approved a project for the development of uniform laws. In 1992, the Queensland Attorney-General requested the Queensland Law Reform Commission to coordinate that project. The commission produced an issues paper[8] and a report.[9] These gave extensive consideration to the question of the eligibility of persons to make application for provision and the basis upon which a court might make such an order.[10] The issues paper put clearly on the agenda for consideration the possibility of adopting a discretionary rather than a category-based system:

It may be possible, if simplification as well as consistency can be achieved, to reduce the number of classified groups of eligible applicants, including, for instance, step-children, grandchildren, parents and de factor spouses, if the focus of the legislation were redirected to the sorts of matters which the Courts should take into account in considering an application, rather than with possibly arid and arbitrary questions of formal eligibility to apply.[11]

[8]Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories (Issues Paper No 2): Family Provision (Working Paper No 47) (1995).

[9]Queensland Law Reform Commission, Report of the Standing Committee of Attorneys-General on Family Provision (Miscellaneous Paper No 28) (1997). The commission later produced a supplementary report: Queensland Law Reform Commission, Supplementary Report to Standing Committee of Attorneys-General (Report No 58) (2004).

[10]See chapter 2 of the issues paper and chapter 1 of the report.

[11]Ibid at 20.

By the time the commission came to publish its report in 1997, Victoria had already decided to adopt this approach. This followed the consideration of the issue by the Attorney-General’s Law Reform Advisory Council. It appears the council did not publish a report on the subject. However, in 1994, it commissioned the noted academic, Dr Rosalind Atherton, to prepare a discussion paper on the desirability of such reform. It asked Dr Atherton to examine ‘(a) Eligibility; (b) The criteria to be applied when determining entitlements …’ and specify ‘(a) Possible reform options, indicating the policy objectives each option would support and the advantage and disadvantages of each option; and ‘(b) The researchers preferred proposals regarding these matters.’ Dr Atherton produced a report addressing these issues.[12]
[12]Victorian Attorney-General’s Law Reform Advisory Council, Family Provision, Expert Report No 1 (1997). I have taken the terms of reference from page x. The report was published in 1997 but completed in July 1994.

In her report, Dr Atherton extensively analyses the history, philosophy and options for reforming the Victorian family provision legislation. She placed some emphasis on identifying the intended function (or policy objective) of any new legislation. In doing so, she drew attention to the way in which the scheme would operate differently depending on whether it was based on the moral obligation of the testator as against the dependence of the applicant or preserving the property of the family dynasty. She said:

It is essential to decide upon the function in order to determine the width of the category of eligible applicants and the width of the court’s jurisdiction to hear claims and make orders.[13]

[13]Ibid 120.

Dr Atherton put forward various eligibility options depending on which function or policy objective was chosen by the legislature as being appropriate. If the legislation was to be based on the testator’s moral obligation, she recommended that a general category of eligibility be adopted, for example ‘any persons for whom the deceased may reasonably have been expected to make provision’.[14] In her report, she made a powerful case for a standard of eligibility which was based on that principle:

If the underlying premise of eligibility either by listing or by using a category such as dependency is really ‘moral obligation’, should not the premise be elevated into the stated base of eligibility? Would this address the ‘over-inclusive’ and ‘under-inclusive’ problem of a general category such as ‘dependants’? Lists and dependence-based qualifications are limited in their ability to reach all relationships of moral obligation. If moral obligation is defined as the true basis of the legislation, both in terms of the operation of the jurisdiction and in arguments for extending the definition of eligibility, there is a difficulty where the legislative solutions only extend to dependents and only extend to a power to provide for maintenance. The first point goes to eligibility; the second to jurisdiction. Moral obligations may extend beyond relationships of dependency, which fuels an argument for defining eligibility more widely; moral obligation may require more than maintenance to fulfil it, which fuels an argument for expanding a basis for making awards. ‘Testator’s Family Maintenance’, or even ‘Family Provision’, legislation is not, of course, defined now in terms of moral obligations as wide as this: even where the basis is defined in terms of moral obligation, it is only defined in terms of moral duty connected with dependency’.[15]

[14]Ibid 166.

[15]Ibid [3.147].

Dr Atherton also examined the various jurisdictions which listed criteria for consideration by the court in the assessment of applications, including England,[16] New South Wales[17] and Ontario.[18]
[16]Ibid [4.47]-[4.56].
[17]Ibid [4.57]-[4.59].
[18]Ibid [4.60]-[4.62].

It is apparent from the second reading speech of the Attorney-General in relation to the amending legislation and the terms of the new provisions that Dr Atherton’s analysis was extremely influential. The Attorney-General criticised the existing category-based provisions as being ‘quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased’s estate from making a claim.’[19] The Attorney-General described the amendments as being designed ‘to enable a wider group of people to apply to the court for testator’s family maintenance.’[20] She went on to say that the legislation did ‘not include a list of eligible applicants for testator’s family maintenance, instead leaving it to the court to determine on a case-by-case basis whether provision should be made for a particular applicant, which is a more equitable method of dealing with testator’s family maintenance applications’.[21] She referred to the list of factors which the court was required to take into account ‘in determining whether or not provisions should be made for a particular applicant’.[22] The legislation was passed with the support of the whole of the parliament.[23]
[19]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 436 (Jan Wade).
[20]Ibid.
[21]Ibid.
[22]Ibid.
[23]Victoria, Parliamentary Debates, Legislative Assembly, 29 October 1997, 821; Victoria, Parliamentary Debates, Legislative Council, 20 November 1997, 733

It can be seen, therefore, that the adoption of a discretionary system, and the repeal of the category-based system, of eligibility was a deliberate policy choice by the legislature which followed careful consideration of the options over a number of years and in the context of national process of reform.[24] In accordance with principles which I will now examine, the public policy objects of the legislation require the courts to give it a purposive interpretation.
[24]The reforms were not made in response to the decision in Popple v Rowe [1998] 1 VR 651, as Winneke P thought may be the case in Coombes v Ward [2004] VSCA 51, [3], although having to reject a claim that might have been meritorious by a step-child who was not the biological child of the deceased certainly illustrated the need for the reform.

Public policy objects and purposive interpretation

The proper maintenance and support of people for whom the deceased has a responsibility to provide, especially but not only women and children, is a matter of great social and public importance. The testator family maintenance provisions give effect to that object by allowing the court to make an order where the deceased has failed in their responsibility to make proper provision in their will, as measured by contemporary community standards. Under authorities of long standing, the legislation must be applied and interpreted liberally and beneficially with that purpose in mind, and the imposition of restrictive implications is to be avoided.

That the legislation has those public policy purposes was the basis of the decision of the High Court in Lieberman v Morris[25] that no one could bargain away their right to claim proper provision.[26] In the words of Williams J, the ‘scope and policy’ of the legislation was ‘to empower the court in the public interest to control for an important purpose the distribution of a testator’s estate’.[27] Rich J explained the provisions were not just a re-enactment of the old laws of private inheritance,[28] but were designed to provide for the proper maintenance and support of persons without adequate provision who might ‘become a charge on the community’.[29]
[25](1944) 69 CLR 69.
[26]On the same public policy grounds, it has been held that a wife cannot contract out of her matrimonial maintenance entitlements: Hyman v Hyman [1929] AC 601, 608, 614 (Lord Hailsham LC), 629 (Lord Atkin).
[27](1944) 69 CLR 69, [19]; see also 78 (Latham CJ), 84 (Rich J), 86 (Starke J), 88 (McTiernan J).
[28]See also Vigolo v Bostin (2005) 221 CLR 191, [10] (Gleeson CJ).
[29]Ibid 85; see also 79 (Latham CJ). After an extensive analysis, that was the view of Jordon CJ (Nicholas CJ in Eq agreeing, Davidson J dissenting) below, which was upheld: see In re Jacob Morris(deceased) (1943) 43 SR(NSW) 352, 356-358. See also Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, 513 (Williams J).

The High Court again considered the public policy purposes of the legislation in Barns v Barns.[30] Following Dillon v Public Trustee of New Zealand[31] and Lord Symons’ dissent in Schaefer v Schuhmann,[32] the court[33] held a promise to make testamentary provision for a person was always subject to their statutory responsibility to make proper provision for others. In doing so, the court emphasised the ‘public, as well as private, importance of the legislation’.[34] Gleeson J said:

The manifest purpose of the [legislation]… is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for, if the court in its discretion thinks that the distribution of the estate should be altered in their favour, even though the testator wishes by his will to bestow benefits on others, and even though he has framed his will as he contracted to do so.[35]

[30](2003) 214 CLR 169.

[31][1941] AC 294.

[32][1972] AC 572, 593ff. Among other things, Lord Symons said the legislation was concerned with the ‘vindication of rights and duties of maintenance within the family, … a fundamental institution of society and with basic human rights’: ibid 593.

[33]Gleeson CJ, Gummow, Kirby and Heydon JJ (Callinan J dissenting).

[34](2003) 214 CLR 169, [34] (Gleeson CJ); see also [114] (Gummow and Hayne JJ), [123]-[124] (Kirby J).

[35]Ibid [22].

The applicable principle of interpretation is that, having those public policy purposes, the legislation is ‘remedial in character and “must be so construed as to give the most complete remedy which the phraseology will permit”’.[36] In this court, Lowe J said in the case of In re Liston[37] that ‘the courts, from the inception [have] adopted a liberal view’[38] of the interpretation of the legislation.[39] In Vigolo v Bostin,[40] Gleeson CJ said the courts ‘have interpreted and applied the legislation by giving it a purposive construction’.[41] That approach to the interpretation of the legislation was again emphasised in Barns v Barns.[42] Gummow and Hayne JJ said ‘the court should not be alert in placing a restricted construction upon the terms of such a law’.[43]
[36]Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, 513 (Williams J), citing Holmes v Permanent Trustee Company of New South Wales Ltd (1932) 47 CLR 113, 119 (Rich J, Evatt and McTeirnan JJ agreeing). See also Worladge v Dodridge (1957) 97 CLR 1, 9 (Williams and Fullagar JJ).
[37][1957] VR 50.
[38]Ibid 51.
[39]See also Popple v Rowe [1998] 1 VR 651, 659 (Winneke P).
[40](2004) 221 CLR 191.
[41]Ibid 197.
[42](2003) 214 CLR 169, [34] (Gleeson CJ), [44] (Gummow and Hayne JJ), [124] (Kirby J).
[43]Ibid [44].

I would illustrate the operation of this principle of interpretation by reference to analogous legislation. For reasons of public policy, the Settled Land Act 1882 (UK) gave a beneficiary to which had been left a life tenancy the power to sell or lease the land, although the will conferred no such right. There were anti-avoidance provisions, which the court always interpreted according to the ‘broad principle’ of the legislation and ‘in a spirit of wise and reasonable liberality’.[44] The courts have repeatedly emphasised the provisions of the legislation should not be interpreted ‘with a mind imbued strongly with the prejudices of old doctrine, and by means of such prejudices to cut down and impair the utility of the legislation’.[45] Those remarks apply equally to the interpretation of the amended provisions of the Administration and Probate Act.
[44]ReMundy and Ropers Contract [1899] 1 Ch 275, 289 (Chitty LJ).
[45]ReDuke of Marlborough Settlement; Duke of Marlborough v Marjoribanks (1885) 30 Ch D 127, 131 (Chitty J). See also Lord Bruce v Marquess of Ailesbury [1892] AC 356, 361, 364; Re Bruce; Halsey v Bruce [1905] 2 Ch D 372, 375.

Freedom of testamentary disposition

In the history of the law, absolute freedom of testamentary disposition has been the exception rather than the rule. In both common law and civil law systems, there have been limitations of greater or lesser extent on the power of a property owner to bequeath it to others by their will. The limitations have been examined in the authorities[46] and textbooks.[47] In the United Kingdom, the limitations were medieval in origin, feudal in nature and arcane in content; they were inconsistent with ‘prevalent social doctrine [favouring] a minimum of government interference in economic relations and a maximum of freedom’;[48] therefore they could not and did not survive the industrial revolution.
[46]Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113, 119 (Rich J); Lieberman v Morris (1944) 69 CLR 69, 85 (Rich J); Schaefer v Schuhmann [1972] AC 572, 596 (Lord Simon); Collicoat v McMillan [1999] 3 VR 803, [45] (Ormiston J); Barns v Barns (2003) 214 CLR 169, [43] (Gummow and Hayne JJ).
[47]Megarry and Wade, The Law of Real Property (7^th ed, 2008) [14-002]; Richard Oughton, Tyler’s Family Provision (3^rd ed, 1997) 1-6; John de Groot and Bruce Nickel, Family Provision in Australia (3^rd ed, 2007) 1-2.
[48]In re Jacob Morris(deceased) (1943) 43 SR (NSW) 352, 356 (Jordan CJ).

Accordingly, the limitations on the right of testamentary freedom were whittled away to virtually nothing by the mid-nineteenth century,[49] if not earlier.[50] In 1873, the absolute right to testamentary freedom could be stated with this absolute clarity:

[B]y the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partly, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued.[51]

[49]Richard Oughton, Tyler’s Family Provision (3^rd ed, 1997) 5-6.

[50]Megarry and Wade, The Law of Real Property (7^th ed, 2008) [14-002].

[51]Boughton v Knight (1873) LR 3 P&D 64, 66 (Sir J Hannen); see also Banks v Goodfellow (1870) LR 5 QB 549, 563-565 (Cockburn CJ, Blackfellow, Mellor and Hannen JJ).

So, what the old law was designed to limit, the new law expressly permitted: arbitrary disherison.[52] At common law, this still represents the law of Australia.[53]
[52]Disherison is ‘the act of disbarring from inheritance’: Jowitt's Dictionary of English Law (2^nd ed, 1997) 626.
[53]The Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, 414 (Windeyer J).

By contrast with what was swept away, the modern law was at least coherent. Its content and its consequences could be understood, indeed only too well. Absolute freedom of testamentary disposition meant men were absolutely free to avoid their financial responsibilities to women and children.[54] As the leading text in the United Kingdom puts it, the freedom meant ‘a married man may disinherit his wife and children and leave all his property to his mistress, or vice versa’.[55] Absolute freedom of testamentary disposition thus contained the seeds of its own destruction. As social conditions in the United Kingdom and elsewhere improved, the concern with individual rights which came with the industrial revolution begat the struggle for equal rights for women. When women achieved the suffrage, they used it successfully to attack the extreme principle which permitted such appalling social results. Parliaments passed family provision legislation which modified the principle of testamentary freedom, beginning with the Testators’ Family Maintenance Act 1900 (NZ), which established a model which was that country’s great legislative gift to the Commonwealth. The legislation, held Lord Simon in Schaefer v Schuhmann,[56] in a dissenting judgment which was later approved by the High Court,[57] ended ‘an interval of unbridled testamentary licence’.[58]
[54]See generally Rosalind Atherton, ‘New Zealand’s Testators’ Family Maintenance Act of 1900 – the Stouts, the Women’s Movement and Political Compromise’ (1990) 7 Otago Law Review 202; Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?' (2000) 6 Australian Journal of Legal History 5.
[55]Richard Oughton, Tyler’s Family Provision (3^rd ed, 1997) 1.
[56][1972] AC 572.
[57]Barns v Barns (2003) 214 CLR 169, [34] (Gleeson CJ),[103], [114] (Gummow and Hayne JJ), [123]-[124] (Kirby J).
[58][1972] AC 572, 596.

But no jurisdiction,[59] and certainly not Victoria, has used family provision legislation to abolish freedom of testamentary disposition. That has been frequently emphasised by the High Court. In Pontifical Society for the Propagation of the Faith v Scales,[60] Dixon CJ said the discretion given to the court was not to ‘re-write the will of a testator’.[61] Freedom of testamentary disposition was not to have ‘only a prima facie effect, the real dispositive power being vested in the court’.[62] In Vigolo v Bostin,[63] Gleeson CJ said the legislation ‘preserved freedom of testamentary disposition, but subjected that freedom to a new qualification’.[64]
[59]In Canada, the legislation ‘did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right’: Tataryn v Tataryn [1994] 2 SCR 807, 815 (McLachlin J for the court). In New Zealand, the legislation does not allow the court ‘to make a new will for the testator’ but ‘to alter a testator’s disposition … only so far as it is necessary to provide for the proper maintenance and support of ‘the applicants’: In re Allardice (1910) 29 NZLR 959, 969 (Stout CJ).
[60](1962) 107 CLR 9.
[61]Ibid 19.
[62]Ibid. See also Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, 146 (Gibbs J).
[63](2004) 221 CLR 191.
[64]Ibid [10].

To the same effect in Victoria there is Grey v Harrison,[65] in which Callaway JA (Tadgell and Charles JJA agreeing) said ‘we must not underestimate the significance, both practical and symbolic, of freedom of testation. It is one of the badges of society that has graduated from primitive conditions and a notable human right’.[66] That statement was made in reference to the pre-1997 legislation, but it was repeated by Callaway JA (Batt and Buchanan JJA agreeing) in Lee v Hearn[67] in reference to the current legislation, and has been oft-cited since.[68] It is therefore clear that, when deciding whether to make an order for provision under s 91(1), preserving the deceased’s freedom of testamentary disposition is a significant discretionary consideration.[69]
[65][1997] 2 VR 359.
[66]Ibid 363.
[67](2005) 11 VR 270, [6].
[68]Schmidt v Watkins [2002] VSC 273, [14] (Harper J); Herszlikowicz v Czarny [2005] VSC 354, [110] (Hargrave J); Cangia v Cangia [2008] VSC 455, [36] (Whelan J); Robertson v Koska [2010] VSC 134, [79] (Vickery J).
[69]See also Collicoat v McMillan [1999] 3 VR 803, [45] (Ormiston J); Downing v Downing [2003] VSC 28, [42] (Osborn J); McKenzie v Topp [2004] VSC 90, [52] (Nettle J); Unger v Sanchez [2009] VSC 541, [64] (Kaye J).

If Callaway JA in Grey v Harrison[70] and Lee v Hearn[71] did not pause to elaborate on the source and content of this human right, neither did Lord Simon in Schaefer v Schuhmann[72] when his Lordship said the legislation was concerned with the ‘basic human rights’[73] of people within the family. Taken together, however, these statements draw attention to the two fundamental interests which are at stake[74] and which are reconciled in the concept of the moral duty of the deceased to provide.
[70](1997) 2 VR 359, 365.
[71](2005) 11 VR 270,
[72][1972] AC 572.
[73]Ibid 593.
[74]See the ‘two interests’ analysis of McLachlin J in Tataryn v Tataryn [1994] 2 SCR 807, 814-815.

Moral responsibility of deceased to provide

The most quoted jurisprudential source of the moral duty of the deceased to provide is Banks v Goodfellow.[75] Delivering the judgment of the court, Cockburn CJ described the right of testamentary freedom in these terms:

The law of every civilised people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass. Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given.[76]

[75](1875) LR 549 (Cockburn CJ, Blackburn, Mellor and Hannen JJ).

[76]Ibid 563.

From the earliest days, the legislation in New Zealand has been interpreted by reference to the concept of the moral duty. This is Edwards J in the case of In re Allardice:[77]

I think that the duty of the court in this respect may be thus best expressed: It is the duty of the Court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be. If the Court finds that the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the Court to make such an order as appears to be sufficient, but no more than sufficient, to repair it.

Later, in the case of In re Allen (deceased),[78] Salmond J gave what is now regarded as the classic formulation:
The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. If it is manifest that the testator has, whether consciously or inadvertently, failed to perform this duty, it is the right and duty of the Court to perform it for him by making such alterations in his testamentary dispositions as may be inadequate, but no more than adequate, for that purpose …[79]

[77](1910) 29 NZLR 959, 972-973.

[78][1922] NZLR 218.

[79]Ibid 220-221.

The concept of the testator’s moral duty to provide is thus central to the legislative reconciliation of the testator’s interest in testamentary autonomy and the public interest in the proper maintenance and support of people for whom the testator has a responsibility to provide.[80] In Australia, with rare exceptions, that is how the legislation in the various jurisdictions has been interpreted.
[80]See generally Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?' (2000) 6 Australian Journal of Legal History, 5, 25.

Doubt was thrown on that approach by the judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse,[81] who referred to the exceptions[82] and said the concept of moral duty may be a ‘gloss on the statutory language’.[83]
[81](1994) 187 CLR 201.
[82]Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, 158 (Murphy J); Goodman v Windeyer (1980) 144 CLR 490, 504-505 (Murphy J); see also Coates v National Trustees Executors and Agency Company Ltd (1956) 95 CLR 494, 522 (Fullagar J).
[83](1994) 181 CLR 201, 209 (Mason CJ, Deane and McHugh JJ).

This doubt has been resolved in Victoria by the decisions of the Court of Appeal in Blair v Blair,[84] Lee v Hearn[85] and Forsyth v Sinclair,[86] in which an extensive analysis of the authorities is to be found. These decisions in turn approved the decision of Ormiston J in Collicoat v McMillan[87] in which the function of the concept was authoratively described as follows:

In my opinion the expression ‘moral claim’ has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[88]

[84](2004) 10 VR 69 (Chernov and Nettle JJA and Hansen AJA).

[85](2005) 11 VR 270 (Callaway, Batt and Buchanan JJA).

[86][2010] VSCA 147 (Neave and Redlich JJA and Habersberger AJA).

[87][1999] 3 VR 803.

[88]Ibid [43].

In consequence, the standard which is implicit in the legislation is, in the words of Nettle JA in Blair v Blair,[89] ‘whether and if so what provision a wise and just testator would have thought it his duty to make in the interests of the claimant’. Under the amended legislation, the scope of that duty determines not just the amount of the provision which must be made but the persons to whom the deceased has the responsibility to make the provision.
[89](2004) 10 VR 69, [41].

Persons for whom deceased had responsibility to make provision

Victoria does not have a category-based eligibility system. Any person ‘at all’[90] for whom the deceased had a responsibility to make provision may apply for an order under s 91(1).[91] What was the underlying principle of provision has also become the principle of eligibility so that it applies equally and without discrimination in all cases where the responsibility to provide is established. The existence of ‘any family or other relationship’ between the deceased and the person, including its nature and length, is a mandatory relevant consideration (s 91(4)(e)). The word ‘family’ is not defined. ‘Family’ is not a term of art, ‘that is, it is not a technical term with a specified meaning’.[92] The term must take its meaning from its context.[93] Here the context is legislation giving effect to the deceased’s moral responsibility for providing proper maintenance and support for a person, which legislation is interpreted purposively and beneficially. The term ‘family’ would, in this legislation, therefore be given the ‘flexible and wide’[94] interpretation which has been adopted in similar contexts, being an interpretation which has regard to contemporary social standards embracing relationships other than those which are based on consanguinity or affinity.[95] The wide meaning of ‘family’ may not be to the point, for it is to a ‘family or other relationship’ that the court must have regard. These are not limited to ‘a relationship akin to a family or blood relationship’.[96] Indeed the applicant need not have ‘a specified relationship with the deceased’[97] at all. That is because the ‘amended provisions recognise that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for’.[98] The question always is whether the deceased has failed in their responsibility to make provision for the person and (if so) what provision (if any) should the court order. Describing the scheme as ‘testator’s family maintenance’ is therefore a misnomer and ‘testator’s responsibility to provide’ may now be more accurate.
[90]Lee v Hearn (2005) 11 VR 270 [7] (Callaway JA, Batt and Buchanan JJA agreeing).
[91]See also Coombes v Ward [2004] VSCA 51, [3] (Winneke P).
[92]Fitzspatrick v Sterling Housing Association Limited [2001] 1 AC 27, 41 (Lord Nicholls).
[93]Sheffield City Council v Wall [2010] EWCA Civ 922, [25] (Ward, Etherton and Sullivan LJJ).
[94]Brock v Williams [1949] 2 KB 388, 393 (Bucknill LJ), referring to cases, including some relating to wills and settlements, in which the term was given such an interpretation: see Snow v Teed (1870) LR 9 Eq 622; Price v Gould 46 TLR 411; Salter v Lask [1925] 1 KB 584, 587 (Salter J).
[95]Fitzspatrick v Sterling Housing Association Limited [2001] 1 AC 27, 35, (Lord Slynn), 44 (Lord Nicholls), 50 (Lord Clyde).
[96]Forsyth v Sinclair (2010) VSCA 147, [85] (Neave JA, Redlich JA and Habersberger AJA agreeing).
[97]Forsyth v Sinclair (2010) VSCA 147, [88] (Neave JA, Redlich JA and Habersberger AJA agreeing); see also MacEwan Shaw v Shaw (2003) 11 VR 95. [22] (Dodds-Streeton J).
[98]Re Bull, deceased [2006] VSC 113, [23] (Byrne J).

In view of the issues in the present case, I note that indulgent behaviour by adults towards children, such as the loving kindness, practical and emotional support and gifts which grandparents typically give to grandchildren, have not themselves been regarded as sufficient to give rise to a responsibility to provide,[99] although combined with other considerations, such as contributions by the grandchildren to the estate and welfare of the grandparents, the closeness of the relationship will be relevant.[100] The friendship, support and courtesy which neighbours can show towards each other, even when it involves substantial self-sacrifice, has been held not to give rise to a responsibility to provide on the part of the recipient, in the absence of other considerations.[101]
[99]Leahy v Trescowthick [1999] VSC 409, [37] (Warren J); MacEwan Shaw v Shaw (2003) 11 VR 95, [65] (Dodds-Streeton J).
[100]Collicoat v McMillan [1999] 3 VR 803, [55] (Ormiston J).
[101]Schmidt v Watkins [2002] VSC 273, [24] (Harper J).

It is clear that domestic partners (persons in a de facto marriage-like relationship, such as one coming within s 35(2) of the Relationship Act 2008 (Vic), and whether heterosexual or homosexual) come within the expression ‘family or other relationship’ in s 91(4)(e) and are persons for whom a responsibility to provide proper maintenance and support can arise under s 91(1).[102] On the other hand, as the present case will demonstrate, the responsibility to make provision is not confined to relationships of that nature nor to persons who were the deceased’s dependants. The provision which is required is that which is adequate for the proper maintenance and support of the person.
[102]Schmidt v Watkins [2002] VSC 273, [22] (Harper J); In the matter of the will of GG Sitch (deceased) [2005] VSC 308, [71] (Gillard J); Carter v O’Brien [2007] VSC 21, [27] (Mandie J); Anslow v Journeaux [2009] VSC 250, [41] (Beach J); Sinclair v Forsyth [2008] VSC 250, [88] (Neave JA, Redlich JA and Habersberger AJA agreeing).

Adequate provision for proper maintenance and support

The court must determine whether the will made ‘adequate provision for the proper maintenance and support’ (s 91(4)) of a person for whom the deceased ‘had responsibility’ to make that provision (s 91(1)).

The genesis of the words ‘adequate provision for … proper maintenance and support’ is the Family Protection Act 1900 (NZ). Those words have never been interpreted to mean mere subsistence. For example, in the ‘very important case’[103] of In re Allardice,[104] it was held by Stout CJ that the words meant ‘such kind of maintenance as the widow during the life of her husband has been accustomed to’.[105]
[103]In re Sinnott [1948] VLR 279, 281 (Fullagar J).
[104][1910] 29 NZLR 959.
[105]Ibid 969. Sir Robert Stout, New Zealand’s first premier and chief justice and his wife Lady Anna Stout, were responsible for the successful campaign to introduce such legislation: Rosalind Atherton, ‘New Zealand’s Testators’ Family Maintenance Act of 1900 – the Stouts, the Women’s Movement and Political Compromise’, (1990) 7 Otago Law Review 202.

The power make an order for provision is meant to cover a multifarious range of circumstances which cannot be categorised in advance. Determining what is adequate and proper must be approached on a case by case basis. ‘No two cases will be exactly alike’, held Fullagar J in the case of In re Sinnott.[106] It has been held that there ‘are no fixed standards’ and the court must consider the matter ‘upon the basis of its own general knowledge and experience of current social conditions and standards’.[107] The task involves ‘making a value judgment’ or ‘a sound discretionary judgment’ and has been compared to assessing the quantum of damages for pain and suffering or for loss of amenities of life in personal injuries cases.[108]
[106]In re Sinnott [1948] VLR 279, 281 (Fullagar J).
[107]Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J, Stephen and Mason JJ agreeing), applying In re Hodgson [1955] VLR 481, 491 (Southall J).
[108]Singer v Berghouse [1994] 181 CLR 201, 211 (Mason CJ, Deane and McHugh JJ).

The courts have frequently emphasised that the provision must be both ‘adequate’ and ‘proper’, that ‘proper’ is ‘something different’[109] to ‘adequate’ and both words ‘must be given their full value’.[110] The question is ‘not merely adequacy or sufficiency but whether the distribution has measured up to the obligations which the statute imposes on a testator’.[111] The ‘station in life’ of the parties and their reasonable expectations must be considered, being those ‘reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future’.[112] What is adequate and proper ‘must always be relative’[113] and will depend on ‘all the circumstances of the case’.[114]In Vigolo v Bostin,[115] Gleeson CJ said:

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.[116]

[109]Bosch v Perpetual Trustee Company Ltd [1938] AC 463, 476 (Privy Council).

[110]Blore v Lang (1960) 104 CLR 124, 128 (Dixon CJ).

[111]Collicoat v McMillan [1999] 3 VR 803, [40] (Ormiston J).

[112]Vigolo v Bostin (2005) 221 CLR 191, [114] (Callinan and Heydon JJ).

[113]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon CJ).

[114]McCosker v McCosker (1957) 97 CLR 566, 571, 575 (Dixon CJ and Williams J); see also Vigolo v Bostin (2005) 221 CLR 191, [228] (Callinan and Heydon JJ).

[115](2005) 221 CLR 191.

[116]Ibid [12].

In the end, what is adequate and proper provision must be that which it was the moral responsibility of the deceased to provide from their estate, for the power of the court to make an order is conditioned upon and can only be exercised for the purpose of giving effect to that obligation.[117] Interference with the deceased’s freedom of testamentary disposition is justified and authorised only in those circumstances and to that extent.[118] In forming a view about that critical matter, the considerations in s 91(4)(e)-(p) must be taken into account. The standard of maintenance and support must reflect prevailing community standards.
[117]Coates v National Trustees Executors and Agency Company Ltd (1956) 95 CLR 494, 509 (Dixon CJ); McCosker v McCosker (1957) 97 CLR 566, 575 (Dixon CJ and Williams J); Vigolo v Bostin (2005) 221 CLR 191, 200 (Gleeson CJ).
[118]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon CJ).

Prevailing community standards

The first introduction of family provision legislation reflected community standards at the time, especially concerning the injustice done to widows and dependent children by the abuse of testamentary freedom by husbands and fathers.[119] Reflecting those standards, the categories of persons eligible to make application in Victoria were limited to widows and young dependent children. As community expectations changed in response to different social conditions, the eligibility categories were widened, typically to include de facto spouses and all children. In jurisdictions other than Victoria, such eligibility categories have been retained, albeit in significantly extended form. Prevailing community attitudes are reflected in the scope of the categories, the assessment of the moral obligation of the deceased[120] and what is ‘adequate’ and ‘proper’ for the maintenance and support of the person.[121]
[119]Rosalind Atherton, ‘New Zealand’s Testators’ Family Maintenance Act of 1900 – the Stouts, the Women’s Movement and Political Compromise’ (1990) 7 Otago Law Review 202, 220.
[120]White v Barrow (1980) 144 CLR 431, 440 (Stephen J).
[121]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon CJ).

In Victoria, the 1997 amendments enable all persons to make application, subject to the specified mandatory considerations. Prevailing community expectations remain critical to the scope of the moral duty to make provision and what is adequate for the proper maintenance and support of the person, as they were under the previous provisions. But prevailing community standards, as reflected in the responsibility of the deceased to make provision, now also determine the eligibility of the person to make application and the jurisdiction of the court to make an order.

As the moral responsibility of the deceased to make provision is defined in terms of ‘prevailing community standards of what is right and appropriate’,[122] it is of the very nature of that responsibility that it will ‘change from time to time’.[123] It is not fixed or static and will ‘evolve in accordance with the prevailing community views and attitudes’.[124]
[122]White v Barron (1980) 144 CLR 431, 440 (Stephen J).
[123]Lee v Hearn (2005) 11 VR 270 [8] (Callaway JA, Batt and Buchanan JJA agreeing); Re Bull, deceased [2006] VSC 113, [24] (Byrne J).
[124]Forsyth v Sinclair (2010) VSCA 147, [83] (Neave JA, Redlich JA and Habersberger AJA agreeing).

Date at which consideration is given

In other Australian jurisdictions, the comparable legislation requires the court to consider two issues: whether the deceased left the person without adequate provision for their maintenance and support (the jurisdictional question) and whether the court should make an order for provision (the discretion question).[125]
[125]White v Barron (1980) 144 CLR 431, 441-443 (Mason J), 456-457 (Wilson J); Goodman v Windeyer (1980) 144 CLR 490, 509 (Aickin J); Singer v Berghouse [1994] 181 CLR 201, 208-209 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin (2005) 221 CLR 191, [4]-[6] (Gleeson CJ), [56] (Gummow and Hayne JJ).

As the first issue involves the deceased’s moral responsibility to make provision (if any), the date at which this matter is considered is the date of the death of the deceased. All of the material facts and circumstances which existed at that date are considered, whether or not the deceased knew of them, as well as all of those facts and circumstances which were reasonably foreseeable at that time.[126]
[126]Coates v National Trustees Executors and Agency Company Ltd (1956) 95 CLR 494, 508 (Dixon CJ), 515-516 (Webb J), 526-528 (Kitto J); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, 147-148 (Gibbs J); White v Barron (1980) 144 CLR 431, 437 (Barwick CJ), 441 (Mason J), 448-449 (Aickin J); Goodman v Windeyer (1980) 144 CLR 490, 498-499 (Gibbs J, Stephen and Mason JJ agreeing); Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127, [70] (Buss JA).

As the second issue involves determining what (if any) provision the court should make in the exercise of its discretion for the proper maintenance and support of the person, this matter is considered at the date of making the order. All of the material facts and circumstances existing at that time are taken into account.[127]
[127]Coates v National Trustees Executors and Agency Company Ltd (1956) 95 CLR 494, 509 (Dixon CJ); White v Barron (1980) 144 CLR 431, 441 (Mason J); Goodman v Windeyer (1980) 144 CLR 490, 499 (Gibbs J, Stephen and Mason JJ agreeing).

In Victoria, the legislation requires the court to consider three issues: whether the deceased had responsibility to make provision, whether the provision (if any) was adequate for the proper maintenance and support of the person and (if not) what amount of provision (if any) should be ordered.[128]
[128]Forsyth v Sinclair [2010] VSCA 147, [58] (Neave JA, Redlich JA and Habersberger AJA agreeing); MacEwan Shaw v Shaw (2003) 11 VR 95, [42]-[47] (Dodds-Streeton J); Schmidt v Watkins [2002] VSC 273, [8] (Harper J).

The first and second issues which must be considered under the legislation in Victoria fall into the same category as the first issue which must be considered under the comparable legislation in the other jurisdictions. The third issue which must be considered under the legislation in Victoria is the same as the second issue which must be considered under the legislation in the other jurisdictions. Therefore, in Victoria the date for the consideration of the first and second issues is the date of the death of the deceased and the date for the consideration of the third issue is the date of the making of the order (if any).[129] That was the approach followed in the application of the previous legislation in Victoria, which was based on the two-stage process.[130]
[129]Forsyth v Sinclair [2010] VSCA 147, [58] (Neave JA, Redlich JA and Habersberger AJA agreeing); McKenzie v Topp [2004] VSC 90, [15] (Nettle J); Blair v Blair (2004) 10 VR 69, [11] (Chernov JA, Nettle JA and Hansen AJA agreeing).
[130]Prosser v Twiss [1970] VR 225, 232 (Lush J).

Intentions of the deceased

Unless it is established that the court should exercise its power to make provision under s 91(1), the duty of the court is to give effect in law to the testamentary wishes of the deceased as expressed in their will.[131] However, in determining whether the deceased has failed to meet their responsibility to make adequate provision for the proper maintenance and support of the person, it may take into account under s 91(4)(p) the wishes of the deceased as expressed otherwise than in the will, including statements made by the deceased during their lifetime that the existing provision for the person was not adequate,[132] that they intended to make provision for the person[133] and (conversely) that the existing provision was adequate or they had no such intention.[134] The wishes of the deceased as so expressed are relevant but not a determinative consideration. The court must make an independent determination about whether the deceased failed to meet their responsibility to make the necessary provision, taking into account all of the considerations specified in s 91(4)(e)-(p). In that determination, the court may make an order for provision which is contrary to the wishes of the deceased, as expressed in the will or otherwise, because it was the responsibility of the deceased to do so.[135]
[131]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon CJ).
[132]Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 483 (Privy Council).
[133]Forsyth v Sinclair [2010] VSCA 147, [98] (Neave JA, Redlich JA and Habersberger AJA agreeing).
[134]McKenzie v Topp [2004] VSC 90, [46] (Nettle J).
[135]Churton v Christian (1988) 13 NSWLR 241, 243 (Mahoney JA).

Character and conduct of persons

Section 96(1) of the Administration and Probate Act used to give the court a discretion to refuse to make an order for provision if, in the opinion of the court, ‘the character or conduct of the applicant [was] such as … to disentitle him or her to the benefit of any provision’. That discretion was removed by the repeal of that provision by the 1997 amendments.[136] Under the new provision, the court must have regard to ‘the character and conduct of the applicant or any other person’ (s 96(4)(o)). Notably, unlike the provision which was repealed, that paragraph ‘is not confined to character or conduct disentitling’[137] and neither is it confined to the character or conduct of the applicant.
[136]Section 96(1) was repealed by s 58 of the Wills Act 1997.
[137]In the Matter of the Will of GG Sitch (deceased) [2005] VSC 308, [95] (Gillard J).

As the previous legislation gave effect to the objective moral responsibility of the deceased to make provision, the discretion to refuse an order on the grounds of disentitling conduct was not exercised by reference to the subjective opinion of the deceased about the person or their character or conduct. The accepted principal was that an order was refused on this basis only where ‘the conduct of the applicant [was] such as would, in the eyes of the right thinking and reasonable member of the community, disentitle the applicant to relief’.[138]
[138]Wenn v Howard [1967] VR 91, 95 (McInerney J); Collicoat v McMillan [1999] 3 VR 803, [45] (Ormiston J).

The present legislation gives effect to the same moral responsibility. To the extent that s 91(4)(o) now requires the character or conduct of the person to be taken into account and this is relied upon as a negative consideration, the same approach must therefore be adopted. The character or conduct must be such as would provide objective justification for making provision less than what the responsibility of the deceased would otherwise have required. Accordingly, the objective responsibility of the deceased to make provision has not been regarded as reduced by the kind of disputes which commonly occur within families[139] or even by shameful or embarrassing misbehaviour for which there were significant exculpating circumstances.[140]
[139]McKenzie v Topp [2004] VSC 90, [45] (Nettle J).
[140]Herszlikowicz v Czarny [2005] VSCA 354, [156] (Hargrave J).

Contributions to welfare of deceased

Section 91(4)(k) requires the court to take into account ‘any contribution (not for adequate consideration) of the applicant … to the welfare of the deceased or the family of the deceased’.

This is an important consideration. People commonly make significant contributions to the welfare of others, particularly in times of vulnerability and need due to ill health. Such contributions can be made selflessly, without any expectation of payment or other reward and on pain of the person making a significant sacrifice in terms of their own interests. The provision enables such contributions to be taken into account when determining the responsibility of the deceased to make provision, whether that responsibility has been discharged and what order (if any) should be made.

Contributions of this kind have long been recognised as being relevant to how the moral responsibility of the deceased to make provision may be measured. The conduct of the person towards the deceased or their other ‘desserts’ can give the person a ‘special claim on the testator’s bounty’.[141] Contributions of various kinds have been treated as falling into this category, including ‘co-operation and support’ in the conduct of the deceased’s affairs[142] and giving to the deceased ‘assistance worthy of recognition’.[143]
[141]Goodman v Windeyer (1980) 144 CLR 490, 497 (Gibbs J, Stephen and Mason JJ agreeing); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, 147 (Gibbs J).
[142]Coates v National Trustees Executors and Agency Company Ltd (1956) 95 CLR 494, 510 (Dixon CJ).
[143]Collicoat v McMillan [1999] 3 VR 803, 821 (Ormiston J).

In applying s 91(4)(k), the same approach has been adopted. Where the person has provided ‘support and care … to the deceased during his or her lifetime’,[144] that has been taken into account. Regularly cooking, cleaning and visiting have been regarded as ‘a significant contribution to the welfare of the deceased’.[145] So has the role of being the ‘principal carer and companion’ of the deceased for five years, thus enabling her to live at home.[146]
[144]Unger v Sanchez [2009] VSC 541, [76] (Kaye J).
[145]Petrucci v Fields [2004] VSC 425, [49] (Mandie J).
[146]McKenzie v Topp [2004] VSC 90, [31] (Nettle J).

Taking contributions into account is not a principle of reward and must not be allowed to degenerate into such a principle.[147] It has been held that ‘good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court’.[148] That approach is applied to the consideration of evidence of contributions under s 91(4)(k).[149] In relation to such contributions, the task of the court is always to determine ‘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’, not to determine whether ‘the testator was under an obligation to reward the plaintiff for the care and devotion which she gave to the testator’.[150]
[147]Goodman v Windeyer (1980) 144 CLR 490, 498 (Gibbs J, Stephen and Mason JJ agreeing).
[148]Blore v Lang (1960) 104 CLR 124, 134 (Fullagar and Menzies JJ); see also 137 (Windeyer J).
[149]Schmidt v Watkins [2002] VSC 273, [23]-[24] (Harper J); cf McKenzie v Topp [2004] VSC 90, [32]-[33] (Nettle J).
[150]Unger v Sanchez [2009] VSC 541, [78] (Kaye J).

Those are the principles applicable to the interpretation and application of the legislation. I turn now to consider the applications made by Kim and Alex, beginning with the factual controversy about the nature of the relationship between them and Barry.

RELATIONSHIP BETWEEN KIM, ALEX AND BARRY

Critical issue in case

The critical issue in the case concerns the nature of the relationship between Kim, Alex and Barry. It was the principle submission of Kim and on behalf of Alex that the relationship between them and Barry gave rise to a responsibility to make provision out of his estate for their proper maintenance and support. It was the principle submission of State Trustees that the relationship was not such as to give rise to that responsibility. To that issue I now turn.

Kim and Alex’s separate applications must each be determined on their merits. I will begin with the relationship between Kim and Barry and then move to the relationship between Alex and Barry. I will finally consider the relationship between Kim, Alex and Barry.

Relationship between Kim and Barry
Individuals concerned
Barry

Barry was aged 66 years when he died on 18 March 2009. The cause of his death was cancer. He was aged about 56 years when he met Kim in 1998/1999. The age gap between them was about 28 years. He was aged about 59 years when Alex was born in 2002. Kim agreed that Barry looked older than his years. The photographs in evidence bear that out. He was a television repair technician by occupation, although he had not worked for some years before he died. He never married and had no children. Before Kim, he had not previously had a relationship of the kind which he had with her.

Barry had apparently always lived alone. From when he met Kim up the date of his death, he did so at his five acre property in Gap Road, Sunbury. The house there was extremely untidy (although not squalid). There are photographs in evidence showing the state it was in. In the words of Barry’s brother Keith, Barry ‘lived in terrible circumstances … he never cleaned up after himself’. As will be relevant when understanding why he never let Kim and Alex move in with him, Barry had become used to living that way. It was his individual lifestyle and he appeared to be comfortable with it. While his house was untidy, he was not. He maintained a good standard of dress and personal appearance. He took reasonable care of himself, drank little alcohol, did not smoke and appeared to live a healthy life until he took ill. He was fit and strong for his age. Barry had a range of mechanical interests and kept a lot of farming and general machinery at his property. He had an extensive workshop and shed.

Barry was regarded by all witnesses as having high standards of personal conduct. Kim said he ‘was a man of high morals and high standards’. Kim’s mother Lorraine said Barry ‘was an absolute and thorough gentleman in his dealings with Kim, Alex and other members of the family’. She said he was ‘a very moral and scrupulous man’. Barry’s neighbour Lee O’Shannassy described him in exactly the same way.

All witnesses said Barry was ‘very tight with money’, to use the words of his sister-in-law Roslyn Samson (the widow of his late brother Neil). Kim described him as ‘a frugal man’. Lorraine said Barry ‘was frugal by nature’. On the evidence, he seldom bought anything and it was not in his nature to buy gifts. His brother Keith said he was ‘a miser who rarely spent any money on personal comforts’. Barry’s niece Karen Samson said he was ‘extremely miserly’. Towards the end of his life, he was often short of money and would borrow from Kim, always paying it back with interest. He was asset rich and income poor, for he owned property and also farm machinery and workshop items, but had little actual money to spend. Sometimes he barely had enough money to feed himself.

The witnesses agreed Barry was not a physically demonstrative or openly affectionate man, at least not with adults. In Kim’s words, he ‘did not openly show affection in the company of others’. Despite that reticence, Kim’s mother Lorraine said Kim and Barry would ‘always kiss hello and goodbye’. He also wrote ‘LOVE BARRY’ on cards he gave to Kim.

Most witnesses said Barry was a private individual. Kim described him as ‘a courteous gentleman who kept to himself’. She said ‘it was not in his nature to celebrate’ and he ‘didn’t like going to nightclubs’ (although they did do that once for her thirtieth birthday). Lorraine agreed. She said ‘they didn’t celebrate much at all’. Barry’s best friend Lionel Withers said ‘Barry was a very private person’. His neighbour Lee O’Shannassy described him in exactly the same way. His brother Keith agreed Barry was a ‘solitary sort of man’ who had ‘some problems with intimacy with people’, even with him (Keith) and their sister Margaret Roberts (although not with Keith’s partner Frieda). Keith said this was consistent with Barry not bragging about sexual exploits or telling Keith about Kim. Kim said Barry never went to Christmas lunch with her family.

Kim

Kim was born on 28 June 1970 and was aged 38 years when Barry died. She was aged about 28 years when she met Barry in 1998/1999. Alex was her only child, although she had miscarried twice when younger. She was aged 31 years when Alex was born.

Kim was a foster carer of children for two years in 2000-2002 and then later in 2004-2006 for another two years. After obtaining a first aid certificate and a certificate in aged care, in 2009 she became an aged carer. At the time of the hearing, she was a personal carer by occupation. Due to diabetes and a severe back injury (a prolapsed disc in her spine), she was not then in full-time work and her main source of income was the disability pension. At the time of the hearing, Kim was on anti-depressant medication. Before she met Barry, she had done some limited modelling work, describing this as ‘a bit of catwalk’.

At the time of meeting Barry in 1998/1999, Kim was living at Batman Avenue, Sunbury. She sold it after getting pregnant with Alex in 2001. She then lived with her sister in Sunbury for some months. After that, she moved into rented premises in St Albans. She remained living in St Albans for some time but then moved in with her mother in Keilor Downs, where she was living at the time of the hearing.

Witnesses also described Kim as being ‘a private person’, as her sister Lisa Bedford put it. On Kim’s evidence, she rarely went out, but visited Barry often. She said more than once in her evidence that she ‘didn’t have any friends’. As will be relevant, Kim did smoke and sometimes drank alcohol to excess.

Kim kept diaries during most of the course of her relationship with Barry. An important question arises about the authenticity of those diaries. Before dealing with that issue, I will briefly introduce Alex.

Alex

Alex is Kim’s son who was born on 4 April 2002. He is aged 9 years and is a primary school student. He is in good health.

In her evidence, Kim identified Sam Scarfo as Alex’s father. He was an old boyfriend of hers who remade contact at a vulnerable time in her life due to her father’s death. Kim’s mother Lorraine described those circumstances. Kim conceived Alex during a single sexual encounter with Mr Scarfo, which she described in evidence and which it is not necessary to go into here. She had no continuing relationship with Mr Scarfo.

I would take into account under s 91(4)(p) any maintenance by the deceased of a beneficiary, but Barry was not maintaining any beneficiary.

Liability of person to maintain the applicant (s 91(4)(n))

Section 91(4)(n) requires the court to consider ‘the liability of any person to maintain the applicant’.

Kim was not Barry’s lawful wife. She did not contend, and nor do I find, that she was his de facto wife or otherwise had an entitlement to be maintained by him. Therefore Barry had no liability to maintain Kim.

Alex was not Barry’s biological son. Barry had no liability to maintain Alex.

Alex was Kim’s son. She had a liability to maintain him.

Alex’s biological father also had a liability to maintain him. Despite Kim’s best attempts at obtaining that maintenance, she has never been able to do so and probably never will be able to do so.

Character and conduct of applicant and other people (s 91(4)(o))

Section 91(4)(o) requires the court to take into account ‘the character and conduct of the applicant or any other person’. I have dealt with how this provision is to be interpreted and applied.

All aspects of the character and conduct of Kim and Alex, and the beneficiaries, as well as the relationship between Barry and these people, have been taken into account under the other headings.

I find that neither Kim, Alex nor the beneficiaries have such a character or have engaged in such conduct as to count as a negative consideration. State Trustees does not submit that Kim or Alex have engaged in disentitling conduct, although it does rely on certain conduct of Kim’s (such as her smoking and drinking) in relation to whether it was likely that she and Barry had an intimate relationship. I have taken that into account in other contexts.

Besides Kim, Alex and the beneficiaries, there were no other persons whose character or conduct was relevant.

Other matters the court considers relevant (s 91(4)(p))

A statement made by a deceased about the provision which they intend for the person may be taken into account under this provision (see above).

I have found and taken into account that Barry intended to make a new will with provision for Kim and Alex. His intention was to leave some money for Kim for her support and a lump sum in a trust for Alex so he could get a proper education, have a car on his eighteenth birthday and a start in buying a first home.

DETERMINATION OF APPLICATIONS FOR PROVISION

Did Barry have responsibility to make provision (s 91(1))?

Like cases

I will first refer to a number of authorities, most of which were relied on by State Trustees, in which the courts have considered whether the deceased had a responsibility to provide for the person in particular factual circumstances.

In Coombes v Ward,[152] McDonald J rejected an application by the natural son of the deceased. His Honour accepted the relationship of son and mother was a family relationship under s 91(4)(e), but emphasised the need also to consider the ‘nature of the relationship’.[153] He found ‘there existed no close relationship between’[154] the son and his mother.
[152][2002] VSC 61.
[153]Ibid [65].
[154]Ibid [69].

In the present case, the relationship between Alex and Barry is the observe. The relationship is not biological but extremely close – like that of a son and father.

Schmidt v Watkins[155] is one of several cases to which I have referred in which the claim was made by the alleged domestic partner of the deceased. Harper J made a number of general observations of principle to which I have had regard and referred. His Honour rejected the application on the facts of the case. There were no children involved in the relationship.
[155][2002] VSC 273.

Harper J found that, despite the special relationship between the applicant and the deceased, they were not domestic partners and no relationship to provide arose.[156] His Honour said: ‘Each case in this field must be judged on its own facts’.[157] With respect, I agree. The present case is distinguishable and, in my view, the responsibility is established. I have considered other cases of claims by domestic partners on the same basis.[158]
[156]Ibid [51]-[52].
[157]Ibid [16].
[158]See Carter v O’Brien [2007] VSC 2 (Mandie J); Anslow v Journeaux [2009] VSC 250 (Beach J).

The question arising under ss 91(1) and 91(4)(e) is not whether the person and the deceased are domestic partners, however analytically helpful that may be in a particular case, but whether the deceased had a responsibility to make proper provision for the maintenance and support of the person having regard to the moral claims which arise from ‘any family or other relationship’ between them and the other specified considerations.

The claim of the middle-aged step-son of the testatrix was successful in McKenzie v Topp.[159] It could not have succeeded under the pre-1997 legislation.[160] Nettle J closely analysed the facts and found ‘the relationship was tantamount to mother and child’.[161] His Honour found the plaintiff had made a significant contribution to the deceased’s welfare ‘as her principal carer and companion’.[162] The case shows how, if the facts are established, a parent-like relationship can give rise to a responsibility to provide. The facts are established in the present case. The claim of the step-grandson succeeded in Subasa v State Trustees Ltd,[163] but only to the extent of a deposit on a modest home.[164] That manifestly was a response to the facts of the case.
[159][2004] VSC 90.
[160]Popple v Rowe [1998] 1 VR 651 (Winneke P, Brooking and Hayne JJ).
[161]McKenzie v Toop [2004] VSC 90, [17].
[162]Ibid [31].
[163][2007] VSC 399.
[164]Ibid [43] (Harper J).

In Iwasivka v State Trustees Ltd,[165] Hansen J upheld a claim by a niece by marriage of the deceased. His Honour closely analysed the facts and found the plaintiff ‘was welcomed, treated and nurtured as a daughter by the deceased’.[166] There too the testatrix intended to make a new will favouring the plaintiff, which his Honour took into account.[167] Hansen J said: ‘[t]here are no simple rules in families’.[168] With respect, that case and this case demonstrate the truth of that remark. The present applications must be decided on their own facts, but the intensity of the focus on the facts which Hansen J applied is the approach which I adopt here.
[165][2005] VSC 323.
[166]Ibid [75].
[167]Ibid [94].
[168]Ibid [75].

Re Bull (deceased)[169] is an unusual case the main point of which is that the legislation cannot be used as an instrument of punishment or compensation. On the facts, Byrne J found the true nature of the relationship between the claimant and his abuser was not such as to give rise to a responsibility to provide.[170] The present case is nothing like that case. Byrne J did make general remarks about the operation of the legislation which embrace the present case and which I endorse, including that the current legislation

replaces the mechanical approach adopted under the repealed legislation of identifying [a] status by blood relationship of a particular kind. The amended provision recognises that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for.[171]

[169][2006] VSC 113.

[170]Ibid [31].

[171]Ibid [23].

That brings me to the important case of Forsyth v Sinclair[172] in which Neave and Redlich JJA and Habersberger AJA dismissed the appeal against the decision at first instance of Harper J in Sinclair v Forsyth.[173] It was submitted on behalf of State Trustees that this was the absolute high watermark of a legitimate claim and the present case went way beyond it. I reject those submissions for the reasons that follow.
[172][2010] VSCA 147.
[173][2008] VSC 250.

The application before the court was a claim by the deceased’s domestic partner, not termed that way as such by Harper J but found to be such by the Court of Appeal.[174] Consistently with the proper approach, Harper J went into the facts very carefully. Although the plaintiff and the deceased did not live with each other and there was no financial dependency, they had a relationship ‘of deep and intimate affection’.[175] I have made similar findings in the present case. His Honour found the plaintiff ‘released [the deceased] from the constraints of bachelorhood’.[176] In effect, that is what Kim did for Barry in the present case, and gave him Alex as a child to be a father to as well. Harper J took into account that the relationship between the plaintiff and the deceased was a public relationship.[177] That indicia is missing on Barry’s family’s side and on the side of most of his friends, but is present on the side of Kim’s family and with Barry’s best friend. Further, in the case before Harper J, as in the present case, the deceased concealed the true nature of his relationship with the plaintiff from his brother and sister in law.[178] In the end I think the present case has some similarities with the case before Harper J and the applications before me are not in any way precluded by the decision of Harper J and the Court of Appeal. In my view, the present applications fall squarely within the general principles expounded by the judgment on appeal, to which I have made extensive reference already.
[174][2010] VSCA 147, [88] (Neave JA, Redlich JA and Habersberger AJA agreeing).
[175][2008] VSC 250, [41].
[176]Ibid [16].
[177]Ibid [12]-[13].
[178]Ibid [15].

State Trustees relied on the remarks of Redlich JA that the case on appeal was ‘at the margin’.[179] I do not read those remarks as being intended to erect a barrier which plaintiffs in subsequent like cases must overleap. The remarks were a response to the facts of the case. His Honour’s analysis of those facts highlights considerations which are also established in the present case to a great extent, and this case has the important added feature of the promise made by Barry to support and help Kim if she took her pregnancy with Alex to full term.
[179][2010] VSCA 147, [106].

Kim

Taking the considerations in s 91(4)(e)-(p) into account, I determine that Barry had a responsibility under s 91(1) for Kim’s proper maintenance and support. In the facts and circumstances at the date of his death which have been established, he had a moral duty to make that provision, judged by reference to contemporary community standards.

The most important considerations giving rise to that responsibility are the nature of the relationship between Kim and Barry and the contributions which Kim made to his welfare. I refer to my findings about these matters.

In summary, Kim was Barry’s close personal companion and sexual partner for nearly 10 years until he died. He loved her, she loved him and they were engaged to be married. He persuaded her to have Alex and not to have an abortion. He promised her that, if she did have Alex, he would help her and help her to care for Alex, which he did. I have made findings about the nature of their relationship. While they were not domestic partners, their relationship together and with Alex represented a social unit which was tantamount to a family. They had a shared life to a significant extent, reflecting their love for each other and for Alex and their unique personal circumstances. Kim provided significant support for Barry when he became ill.

I also take into account that Barry intended to make a new will specifying Kim and Alex as beneficiaries, but did not do so before he died. He left an estate of modest value worth about $2.1 million. From that estate, Barry had the capacity to make proper provision for Kim (and Alex), whilst at the same time leaving an appropriate amount for his relatives (as was his wish). Being unmarried with no children or other dependents, Barry had no other obligations which prevented him from fulfilling his responsibilities towards Kim (and Alex). Kim (and Alex) had substantial present and future needs and very limited earning capacity. I take the needs and the earning capacities of the relatives into account.

Alex

Taking into account the same considerations, I also determine that Barry had a responsibility to make provision for Alex. In the facts and circumstances which have been established, Barry had a moral duty to make provision for his proper maintenance and support according to contemporary community standards.

The most important considerations giving rise to that responsibility are the relationship between Alex and Barry and the contribution which Alex made to Barry’s welfare. I refer to my findings about these matters.

In summary, Barry was instrumental in Alex being brought into the world as he persuaded Kim to have Alex and not an abortion. Barry promised to help Kim with Alex, and he actually did so in the many ways referred to in my findings. Barry embraced his responsibilities by reason of the promise he made to Kim and the strength of the loving attachment which he formed with her and him. In return, Alex embraced Barry. Alex and Barry felt and behaved towards each other as a son and a father, although he was not responsible for his day to day care or live with him. Alex was an extremely important relationship for Barry. Barry loved children and he was able to have a father-son relationship with Alex when he had no children of his own.

I also take into account the provision which Barry intended to make for Alex in a new will and the other matters I take into account in reference to Kim and in my consideration of the specific statutory criteria.

Did Barry’s will make the required provision (s 91(3))?

By s 91(3), the court must not make an order for provision under s 91(1) unless the court is of the opinion that, where the deceased person left a will, they did not in that will make adequate provision for the proper maintenance and support of the person.

I have determined under s 91(1) that Barry had a responsibility to make provision for Kim and Alex’s proper maintenance and support. Barry’s made his will over 25 years before he met Kim and it made no provision for them. There was no codicil. Therefore I am of the opinion under s 91(3) that the distribution of the estate effected by Barry’s will does not make adequate provision for the proper maintenance and support of Kim and Alex.

What amount of provision should the court order (s 91(4)(c))?

This question also requires the specified considerations to be taken into account, and I have done so.

The approximate value of the estate is $2.1 million. An amount of provision can and should be ordered out of that estate for Kim and Alex.

I have made findings in relation to Kim and Alex’s needs and earning capacity, which I take into account.

I have identified the beneficiaries under Barry’s existing will and their needs and earning capacity, which I also take into account. The interests of no other person require consideration.

The amount of provision for Kim and Alex should reflect the promise he made to help Kim and to help her care for Alex. In terms of Barry’s responsibilities, that promise implies a proper degree of maintenance and support for both Kim and Alex, especially during his minority, reflecting his separate relationship with them. Barry’s intended new will must also be taken into account.

The amount of provision for Kim and Alex should leave a substantial amount remaining for the benefit of the beneficiaries who were identified in Barry’s will and for whom it was his intention to make provision.

In all of the circumstances, the court should make an order in Kim’s favour for a substantial legacy. The amount should be enough, separately to the amount which should be ordered in favour of Alex, for Kim to buy (or contribute substantially to the cost of) a unit or other modest accommodation for her and Alex, and in which she can live when he grows up. I think an amount of $400,000 is appropriate for this purpose. I will add $50,000 as for contingencies. The amount of $450,000 should be paid to Kim directly and not be maintained on trust for her.

In all of the circumstances, the court should make an order in Alex’s favour which will be sufficient to pay for his upkeep and education during his minority, for a motor vehicle when he turns 18 years of age and for a deposit on a home or investment property at that time. Taking into account the evidence of the cost of his upkeep and education, I consider an amount of $400,000 is appropriate for this purpose. This amount should be paid into court and administered by the senior master for Alex’s benefit until he attains the age of 18 years.

Accordingly, there will be an order pursuant to s 91(1) and (4)(c) of the Administration and Probate Act for the amount of $450,000 to be paid out of Barry’s estate for the proper maintenance and support of Kim.

There will be an order pursuant to s 91(1) and (4)(c) for the amount of $400,000 to be paid out of the estate of Barry’s estate for the proper maintenance and support of Alex. There will be orders for the payment of this amount into court and be administered for Alex’s benefit and distribution for his maintenance, education and support by the senior master until he attains the age of 18 years.

On those figures, Kim and Alex will get about 40% of the estate and the beneficiaries will get about 60%, which I consider to be appropriate after taking into account Barry’s responsibility to make provision for Kim and Alex and his intentions in regard to the beneficiaries.

I will hear the parties in relation to costs and the precise form of the orders for provision.

CONCLUSION

The court is empowered by the provisions of the Administration and Probate Act to make an order for the proper maintenance and support of a person for whom the deceased had a responsibility to provide. It has been established in this case that the late Barry Robert Samson had a responsibility to make such provision out of his estate for Kim Diane Whitehead and her son Alex William Whitehead.

On the facts I have found on the basis of the evidence, Kim was Barry’s loving female companion and sexual partner for nearly ten years until he died in 2009. Barry was in his fifties when he met Kim. When he died, he was aged about 66 years and she was aged 38 years. The age gap between them was 28 years. Despite that difference in age, the two of them had an intimate and exclusive relationship from soon after they met. Barry had never married. He experienced with Kim the first and only such attachment in his life.

Not long after they met, Kim fell pregnant. Barry knew he was not the father but he persuaded Kim to have her only child Alex. He promised to support her and help her care for Alex. Barry embraced those responsibilities until the day he died. In doing so, he formed a father-son relationship with Alex, one that was all the more important to Barry because he was a man who loved children but had no children of his own and to Alex because Barry was the ‘bestest dad in the whole world’ and never saw his real father.

Kim and Alex lived separately from Barry and their finances were independent. They were not domestic partners. But the evidence established the three of them were closely involved in each other’s lives. Barry supported Alex in emotional and practical ways and, within his very limited means, in financial ways also. Kim and Barry supported each other in emotional and practical ways. Barry especially did so during Kim’s pregnancy and with Alex. Kim especially did so when Barry became ill with, and ultimately died of, cancer. Both Kim and Alex made significant contributions to Barry’s welfare, but not to his estate. On the evidence, the relationship between Kim, Alex and Barry represented a social unit which was tantamount to a family.

There was a serious factual controversy in the case about the authenticity of diaries which Kim kept during the course of her relationship with Barry. After considering the evidence, I have found the diaries to be genuine. They are good evidence of the nature of the relationship between her, Alex and Barry, as I have found it to be. In particular, the diaries confirm Kim’s evidence, which I accept, that she and Barry were engaged to be married. They would have married but for his untimely death.

Barry had a will which was more than thirty years old. It left all of Barry’s $2.1 million estate to Barry’s elderly brother and sister and the three adult children (one who had Down’s Syndrome) of another brother who had predeceased him. These beneficiaries all have needs, some of them very significant, and no or limited earning capacity. Their interests must be taken into account. But Barry intended to make a new will with provision for Kim and Alex. Kim got him the will kit which he asked for. He died before using it.

On those and my other findings of fact, I have determined that Barry had a moral responsibility to make provision out of his estate for Kim and Alex judged by reference to the contemporary standards of the community. In respect of the division of his estate, and in an appropriate amount having regard to the interests of the beneficiaries, Barry should be kept to the promise which he made to support Kim and help her care for Alex if she took her pregnancy to full term, which promise he faithfully kept himself when he was alive. Under the provisions of the Administration and Probate Act, Kim and Alex are both entitled to an order for their proper maintenance and support. I make that determination after taking into account Barry’s freedom of testamentary disposition, which is an important consideration. However, with a such an old will and in the circumstances of his relationship with Kim and Alex, that consideration does not fully account for Barry’s moral responsibilities towards them.

Taking into account the value of the estate of $2.1 million and the interests of the beneficiaries as well as Kim and Alex, I have decided to make an order for provision which will give proper maintenance and support for Kim and Alex (about 40% of the estate) while at the same time leaving a substantial amount for the beneficiaries (about 60% of the estate). There will be an order for a legacy in the lump sum of $450,000 for Kim, payable forthwith. There will be an order in favour of Alex, in the amount of $400,000, payable to the senior master for his benefit during his minority, including his upkeep and education, in the expectation that at least $100,00 will be left for him when he turns 18 years. The residual estate will go the beneficiaries in accordance with the will.

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[2011] VSC 424

2 September 2011