Coombes v Ward [2002] VSC 61

Coombes v Ward [2002] VSC 61 - VSC 2002 case summary — Zoe

[24]

The plaintiff's adoptive father, Joseph Coombes, died in the early 1970s. His adoptive mother, Ormal Coombes, died a short time thereafter and probate of her Will was granted on 13 December 1974. She died leaving a small estate which comprised a unit dwelling house. By her Will she devised and bequeathed one-seventh of her estate to a foster son who had lived with them, Graham Weston, one-seventh to each of Peter Coombes and Cheryl Coombes, the children of the plaintiff by his first marriage, one-seventh to each of the three children of Graham Weston. By her will she provided that the remaining seventh share of her estate be held on trust during the lifetime of the plaintiff for his benefit and thereafter to be divided equally between Peter and Cheryl Coombes. After administration of the estate, his one-seventh share, being $4,883.58, was invested on behalf of the plaintiff in accordance with his life interest. The solicitor, Gregory Gray, who assisted the trustee in the administration of the estate gave evidence that at the time of the death of Ormal Coombes the sum invested on trust for the life of the plaintiff would represent an excellent annual wage for a stenographer and was an amount, which at that time, could be used as a deposit on a house. The plaintiff received yearly payments by way of interest from the estate during the period from 1976 to 1993 when the plaintiff and his adult remaining child, Cheryl, agreed that the life interest should be accelerated and the capital divided between the plaintiff and his daughter. A capital disbursement was made to each of the plaintiff and his daughter. Each received $2,312.00. The total benefits received by the plaintiff from his adoptive mother's estate was $11,637.33. In his affidavit sworn on 2 February 2001 the plaintiff had deposed, "my adopting parents Joseph and Ormald Coombes have both died and I did not receive any financial benefit from their estate". This was not true. In cross-examination the plaintiff said he had never said that and said that it was not true at all.

[30]

In her affidavit sworn on 14 May 2001 the defendant deposed that she did not know of the existence of the plaintiff until she was approximately 19 years of age. She deposed that the deceased had told her that she had continued to see the plaintiff from time to time until he was seven years of age when her visits were stopped at the request of the plaintiff's adoptive mother. She deposed that her father who died in 1969 worked hard to save the initial deposit for the house at 43 Somers Street, Bentleigh and to make repayments on the home. In 1962 the defendant married Chris Twikler and in 1964 there was born to her of that marriage a son, Darron. In 1972 she and her husband Chris Twikler separated. She lived with the deceased for a short time until she obtained employment and a place to live for herself and her son, Darron. In 1979 the defendant remarried but the marriage lasted only 18 months and following the breakdown of her marriage and during 1982 the defendant returned to live with the deceased permanently and continued to do so until the deceased died. The defendant continues to reside in the dwelling at 43 Somers Street, Bentleigh. The defendant deposed that after her father died the defendant found it difficult to make ends meet and she was worried about losing the house to the council for the non-payment of rates. In such circumstances the defendant commenced to pay the rates and during the period from 1974 until 1996 she paid all rates due on the property at 43 Somers Street, Bentleigh. The defendant deposed that in 1996 the deceased became upset that she had to rely on the defendant and that she needed to rely on the financial contribution of the defendant to run the home. The defendant deposed that from this point on, in order to ease her mother's mind, she put $20.00 of the pension payments received by the deceased into a Christmas club fund and at the end of the year the deceased would contribute from her own funds which made the deceased happier. The defendant further deposed that from 1982 onwards when she returned to live with the deceased permanently she paid all household bills including gas, electricity, insurance, phone, water, rates and garden maintenance, that the deceased did pay for some food items but in the later years this proved difficult as the deceased often purchased items already in the house, and eventually the defendant took over the task of shopping for the household.

[78]

"(4) The Court in determining - (a) whether or not the deceased had responsibility to make provision for a person; and (b) whether or not the distribution of the estate of the deceased person as effected by - (i) the deceased's will; or (ii) the operation of the provisions of Part I, Division 6; or (iii) both the will and the operation of the provisions - makes adequate provision for the proper maintenance and support of the person; and (c) the amount of provision (if any) which the Court may order for the person; and (d) any other matter relating to an application for an order under sub-section (1) - must have regard to - (e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship; (f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate; (g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject; (h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future; (i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate; (j) the age of the applicant; (k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased; (l) any benefits previously given by the deceased person to any applicant or to any beneficiary; (m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility; (n) the liability of any other person to maintain the applicant; (o) the character and conduct of the applicant or any other person; (p) any other matter the Court considers relevant."

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Judgment (96 paragraphs)

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Legislation Cited (6)

Cases Cited (1)