Coombes v Ward [2002] VSC 61

2. These proceedings were commenced by originating motion filed on behalf of the plaintiff. The proceedings are brought by the plaintiff pursuant to Part IV of the Administration and Probate Act 1958 (as amended). The defendant is sued as the executrix of the Will of May Roberts, deceased, who died on 8 June 2000 at 90 years of age. On 5 September 2000 probate of the Will of the deceased, made on 23 October 1973, was granted to the defendant. By her Will the deceased devised and bequeathed the whole of her real and personal estate to the defendant who is the daughter of the deceased and who is, in the Will, called Sandra Joy Twikler. In these proceedings the plaintiff claims that he is a person for whom the deceased had "responsibility" to make provision for his proper maintenance and support and that by her Will the deceased did not make adequate provision for his proper maintenance and support.

5. By the originating motion the plaintiff sought an order that provision be made for his maintenance and support by providing him with an absolute interest in one-half of the deceased's estate. At the commencement of the trial of the proceedings, counsel for the plaintiff informed the court that the order sought by the plaintiff in these proceedings was that provision be made for the plaintiff from the estate of the deceased in the form of a legacy of $100,000.

8. The plaintiff, who is now 72 years of age, was born to the deceased on 18 July 1929. At that time the deceased was unmarried. The plaintiff has never known his biological father. As a very young child the plaintiff contracted infantile paralysis and spent considerable time at the Yooralla Children's Home. The deceased gave the plaintiff up for adoption when he was approximately four years of age. He was adopted by Joseph William Allen Coombes and Ormal Vera Coombes in 1933. The name of the deceased at that time was May Corkery.

11. The defendant was born to the deceased on 27 September 1943. The defendant's father, the deceased's husband died in 1969.

14. There is exhibited to the affidavit of the plaintiff, sworn on 2 February 2001, a copy of the joint affidavit of Joseph Coombes and Ormal Coombes sworn on 30 August 1933 and made in support of their application to adopt the plaintiff. At that time Joseph Coombes was 32 years of age and Ormal Coombes was 28 years of age. They had been married on 25 April 1927. By that affidavit they deposed that in 1931 Ormal Coombes was a voluntary helper at "Yooralla" hospital school where the deceased would leave the plaintiff during her hours of employment as a laundress at the Women's Hospital, Carlton. Ormal Coombes would take the infant plaintiff to the Children's Hospital for treatment as he was then suffering from infantile paralysis. The plaintiff became very fond of Ormal Coombes and she of him. The deceased found that it was impossible to support the plaintiff as she desired and thought it would be to the advantage of the plaintiff to have him adopted by some persons in a better position to provide for him and so she asked Ormal Coombes if she and her husband would be willing to adopt the plaintiff as their child. Joseph and Ormal Coombes took the plaintiff on trial for a month. They had no children of their own. This occurred in 1931. Joseph and Ormal Coombes grew fond of the infant plaintiff and he continued to live with them with the consent of his mother, the deceased. The deceased consented to Joseph and Ormal Coombes adopting the plaintiff in 1933. The biological father of the plaintiff, John McDonald, had abandoned the plaintiff and could not be found. At the time of the application of Joseph Coombes and Ormal Coombes to adopt the infant plaintiff as their child Joseph Coombes was employed as a traveller. By their application, Joseph Coombes and Ormal Coombes stated that they desired that the plaintiff be registered in the name of Joseph John Coombes.

17. In his affidavit sworn on 2 February 2001 in these proceedings the plaintiff deposed that although he was adopted, his mother, the deceased, kept in close contact with him and she would visit the Coombes' family on weekends and take him for day trips. He has further deposed that as time progressed he recovered from infantile paralysis and that he continued at school until 15 years of age when he joined the Navy during the Second World War. He was in the Navy for only some two years. Following that the plaintiff worked in the mining industry in Australia and New Zealand in the capacity in which he described in evidence as a "trouble shooter". He continued working in the mining industry until 1982 when he was then 53 years of age. At or about the time of his retirement from the mining industry he held shares in Buddha Gold Mine. In evidence he said that the paper value of such shares was some $60,000 to $70,000 but the shares "crashed" and became absolutely worthless.

20. In his affidavit the plaintiff deposed that although he had hoped to retire on his savings he lost everything in the stock market crash and that after that he did some factory work and drove taxis until he retired fully in 1987.

23. The plaintiff was married and divorced quite early in his life. Two children were born of that marriage, a son Peter and a daughter Cheryl. Peter is now dead. The plaintiff does not have close contact with Cheryl.

26. In 1958 the plaintiff, while working in the mining industry, went to New Zealand where he worked and lived for some 16 years. While in New Zealand he met his present wife, Larissa. They commenced to live together in 1961. Two children were born of that relationship, Ronald and Leif.

29. On 14 May 2001 the plaintiff and Larissa Coombes were married. The plaintiff and his wife presently live in rented accommodation in Wodonga. The plaintiff gave evidence that he and his wife moved to Wodonga in 1995 where they have continued to live. They moved to Wodonga to be close to their grandchildren, the two children of their son Ronald. Those children are ten and seven years of age.

32. There was filed in the proceedings, and relied on by the plaintiff, affidavits of Robert Robinson a medical general practitioner practising at Wodonga. The plaintiff has and continues to consult Dr Robinson and other doctors in the clinic in which he works. In his affidavits Dr Robinson deposed that the plaintiff presently suffers from multiple illnesses. The plaintiff is a non-insulin dependent diabetic and has been such for approximately ten years. This condition causes him to suffer a range of other conditions including severe visual impairment. He is classified as legally blind. The plaintiff has, for more than 15 years, suffered from essential hypertension. In his affidavit sworn on 7 February 2002 Dr Robinson deposed that the plaintiff has "severe end-stage renal failure" which he has suffered for four years. In addition the plaintiff suffers from multiple myeloma which he has suffered from for the past two years. This condition is a disease of the bone marrow and bones which produce multiple malignant tumours of the bones. Dr Robinson further deposed that the plaintiff has osteomyelitis of the left forefoot which affects the third metatarsal and that he has a misshapen left foot as a result of suffering from infantile paralysis as a child. Further, Dr Robinson deposed that the plaintiff suffers from severe anaemia as a result of the renal failure and multiple myeloma from which he suffers. In that affidavit Dr Robinson deposed that the plaintiff's "prognosis is not good".

35. In a further affidavit sworn by Dr Robinson on 15 February 2001 he further deposed that by referring to the fact that the plaintiff suffers from "severe end-stage renal failure" he was not referring to life expectancy, but rather, that the plaintiff will need treatment by way of renal dialysis within a short period of time, perhaps within two to three months from the present time. That treatment will involve the plaintiff attending hospital three times a week for this treatment. Dr Roberts further deposed that insofar as he had previously sworn that the plaintiff's prognosis was "not good" he deposed that he had expressed that opinion as the plaintiff suffers from a number of non-reversible conditions. He further deposed, "Whilst I cannot predict accurately his lifespan, I can say John is not close to death currently but feel that that will not be the case in two to three years from now".

38. In his affidavit sworn on 2 February 2001, the plaintiff deposed that he always had a good relationship with the deceased and even when living in New Zealand for some 16 years he kept in touch by exchanging birthday and Christmas cards and telephoning her on occasions. He deposed that the deceased and the defendant visited him and his now wife in 1967 while they were living in New Zealand and that after he returned to Australia in 1970 and commenced working in Western Australia he kept in touch with the deceased by making telephone calls to her and sending cards to her. He deposed that he visited Melbourne several times during this period and he visited the deceased on these occasions. In addition he deposed that the defendant and the deceased visited him and his now wife in Western Australia and stayed with them. He deposed that he continued to see the deceased regularly and that he stayed in her home for a period with his now wife. He deposed that he did not provide any financial support to the deceased as he had financial difficulties of his own, but she continued to be interested in his activities and they spoke regularly by telephone. Further, the plaintiff deposed that the deceased had not assisted him financially during his lifetime. The plaintiff is responsible only for his support and that of his wife, Larissa.

41. In a further affidavit sworn by the plaintiff on 25 June 2001, he deposed that the deceased visited the home of his adoptive parents whilst he was growing up and that this caused dissension, as his adoptive parents felt that she would not "let go" and disliked her interference. He deposed that they did not want him to associate with his mother, but he continued his association with her although her visits to the home of Joseph and Ormal Coombes ceased for a period of time when he was about seven years of age. In that affidavit the plaintiff deposed as to a number of specific occasions when he had specific contact with the deceased and the defendant throughout the deceased's life which included him staying at the home of the deceased.

44. In evidence before the court the plaintiff said that he is now in receipt of a pension from the Department of Veterans' Affairs, that he has been in receipt of such pension for the past eight months and that before that he was in receipt of a single old age pension as at such time he was not married. Pursuant to the Veterans' Affairs' pension, the plaintiff receives $710.00 per fortnight in addition to an age pension of $320 per fortnight. His wife, Larissa, is in receipt of a carer's benefit pension, pursuant to which she receives $115.00 per fortnight. The evidence of Larissa Coombes was that in addition to the Veterans' Affairs' pension received by the plaintiff he also receives an old age pension of about $340.00 per fortnight and that there is received into their household a sum of approximately $1,000.00 per fortnight from the pensions and benefits received by the plaintiff. This is in addition to that received by the plaintiff's wife being $115.00 per fortnight by way of a carer's benefit. The plaintiff's wife is 57 years of age. The plaintiff's wife, other than caring for him, is not engaged in gainful employment.

47. The rented house in which the plaintiff and his wife live is approximately ten years old. The plaintiff pays $350.00 per fortnight by way of rent on this property.

"If the court was minded to make an order to you of a legacy of $100,000 from the estate to what use would you put that $100,000?"

"Put a deposit on the house that I am renting at present. I haven't handled things real good up to date but I would use it for security, peace of mind."

56. He gave evidence that the house could be purchased for $160,000, that he could obtain a War Veteran's Grant of $30,000 on a low interest rate loan and that he could handle a mortgage from the pension that he was receiving. His wife, Larissa, has no assets.

59. In cross-examination the plaintiff agreed that he had never put anything aside to buy a house and while working he was, on some occasions, provided with a "company" house. He agreed that he had never contributed in any way financially to the deceased and said that he did not regularly look after her.

62. The plaintiff gave evidence that in or about 1984 he and his now wife stayed with his mother for some weeks, that he and his now wife then moved to Moorabbin where they lived for some time and then moved to live in Brighton in or about 1986 where they lived until moving to Wodonga in 1995. The plaintiff gave evidence that while living at Brighton the deceased and the defendant would visit him there and that he visited the deceased. The plaintiff said that when he moved to Wodonga in 1995 that was the time when he started to become ill.

65. 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.

68. In cross-examination the plaintiff said that there was dissension between the deceased and his adoptive mother, Ormal Coombes, caused, he said, by the deceased's "clinging or affection" to him.

71. The plaintiff presented in court as an old frail and ill man. He moved about the court with the use of a wheelchair but was able to leave that chair and enter the witness box to give his evidence.

74. The plaintiff's wife, Larissa Coombes, gave evidence and corroborated the plaintiff's evidence that when they moved to Wodonga the plaintiff's health was poor, that it has deteriorated, that he has not driven a motor car for about four years, and that he is not able to travel by himself unassisted. She also gave evidence that if the plaintiff was to receive a "legacy" from the estate of the deceased in the sum of $100,000 it would be put towards the purchase of the house in which she and the plaintiff live and that together with a War Veterans' grant which would be available to the plaintiff, the balance of the purchase price could be paid by obtaining a mortgage over the property. In an affidavit sworn on 25 June 2001, Larissa Coombes deposed that there was regular personal contact between the plaintiff and the deceased after they returned to Melbourne in 1984 and that she observed that they always enjoyed a close "mother and son relationship".

77. There was exhibited to the affidavit of the plaintiffs, sworn on 2 February 2001, the inventory of assets and liabilities of the deceased. The only assets of the deceased at the time of her death comprised a house situated at 43 Somers Street, Bentleigh which was valued at $300,000 and a bank account standing in the credit of $419.15.

80. In an affidavit sworn by John Sly a real estate valuer, on 14 February 2002 he deposed that the present value of the house situated at 43 Somers Street, Bentleigh, as inspected by him on 17 September 2001, was $375,000. Exhibited to his affidavit was a report and valuation prepared by him with respect to that property. In the general comments of the valuer as contained in his report he describes the house as "an appealing" "Californian" bungalow period brick two bedroomed dwelling with a "detached fibro garage". As part of the general description of the house it is stated that the central bathroom has been updated and that constructed to the rear of the house is a "kitchen/meals addition built on a concrete slab". Under the heading "condition of improvements" it is stated, in part, "structurally the improvements appear to be sound although there is evidence of some internal cracking along the western brick wall of the loungeroom". The parties agreed that the value of this property was $370,000.

83. 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.

86. The defendant further deposed that when she moved into and commenced to live at 43 Somers Street, Bentleigh the house was in a state of great disrepair. She has deposed that the floorboards were rotten, that it took an hour to run a bath, that the heating was inadequate, that there were no floor coverings other than some second hand pieces of material which had been placed on the floor, that there was cracking in the walls, that the home was in need of painting and the fences were falling down. The defendant deposed that, from her own moneys, she paid for maintenance and rectification of the property to be carried out together with the payment of insurance premiums, rates and water rates and the supply of gas and electricity to the home. The amounts spent by the defendant on the payment of such sums during this period from receipts held by the defendant and estimates made by her total $120,825.81. Such payments included the provision of new floors in the house, plumbing, spouting and drainage, the installation of a hot water service, the provision of new water pipes, the replacement of the patio roof, floor coverings, the replacement of fences, painting, garden maintenance and like expenses. Details of such payments made and money spent by the defendant are set out in her affidavit and also set out in an exhibit to an affidavit sworn by the defendant on 14 February 2002.

89. While living with the deceased and until the end of 1999 the defendant was engaged in a business which was conducted by her and it was from this source that she was able to make repairs to the home, maintain it and pay for outgoings in respect of the same. The kitchen/meals addition to the house which is erected on a concrete slab was paid for by the defendant.

92. The defendant further deposed in her affidavit that in 1998 she was concerned that if the house had to be sold in order for her mother to enter a nursing home then the contributions made by her in paying for repairs, maintenance, alterations and to the purchase of fittings and appliances in the home would not be acknowledged. She took advice at this time. She deposed that she had been told by the deceased that on her death the house would be hers and she was aware that the deceased had made a will to that effect. The defendant did not go ahead with any proceeding at that time. She deposed that her mother was frail and that she steadfastly refused to go into a nursing home. The defendant deposed that at this time she determined to sell her business, which she did for $25,000, and that she would thereafter remain at home to look after her mother on a full-time basis. In a letter written by the deceased's general practitioner to the solicitors for the defendant dated 29 March 2001 and exhibited to an affidavit sworn by the defendant there is set out the many disabilities and illnesses suffered by the deceased in the latter stages of her life. It is stated that the deceased had been unfit to look after herself for at least ten years, that she had developed cardiac failure and due to this, and emphysema from which she suffered, she required constant supervision. In 1998 the deceased suffered a heart attack and also suffered from pneumonia and emphysema. In 1999 she fractured the neck of her right femur and later suffered a fracture of the left femur which required hospitalisation and rehabilitation. On 5 January 2000 it was found that the deceased suffered from cancer in her right breast but it was determined that she was unfit for surgery and was placed on medication.

95. The defendant is 57 years of age and is presently employed as a bar attendant. In her affidavit sworn on 14 May 2001 she set out her financial position and the assets held by her. They include a motor car and household furniture. Her assets include bonds held by her valued at $67,000, a superannuation fund valued at $33,230 and a sum in a fixed term account in the name of S. Ward Pty Ltd in the amount of $39,800. She deposed that the superannuation fund is not available to her until she retires and that the amount held by way of a fixed term account was received by her from the sale of her business and forms part of her superannuation funds. The amounts held by the defendant by way of bonds are accessible. She gave evidence that the other funds held by her were part of her superannuation package and structured to provide for her on her retirement.

98. Whilst living with her mother during the period from 1982 until her mother's death the defendant did not pay a specific sum by way of rent or board.

101. In her affidavit the defendant deposed that in 1984 the plaintiff and his present wife and a son stayed for some months at the house in Somers Street, but that there was tension and dissension between the deceased and Larissa Coombes and that she was forced to ask her to leave. She has deposed that without advising her, the plaintiff and his family left, providing no forwarding address and that for some two years the plaintiff had no contact with the deceased or her, but then it was learned that the plaintiff had lived in Moorabbin and later moved to East Brighton to live. In the affidavit of the defendant sworn on 14 May 2001 she has deposed, in effect, that the plaintiff made and had little contact with the deceased. She deposed that in 1998 she rang the plaintiff in Wodonga and went to visit him hoping that she could persuade him to become closer to the deceased but that the plaintiff rejected this advancement. She deposed that she rang the plaintiff often after this time seeking to have him speak to the deceased on the phone and that when he later made contact with her he did so on a small number of occasions. The defendant further deposed that the plaintiff did come to Melbourne for three days in January 2000 but, despite her efforts, the plaintiff declined to make contact with the deceased during the latter stages of her life.

104. In cross-examination the defendant gave evidence that in 1998 at the time that her mother had suffered a heart attack the plaintiff had not had contact with the deceased for years. She said that at that time there was no relationship existing between the plaintiff and the deceased. She said it was not true that the plaintiff often spoke on the telephone to his mother.

107. The defendant said that she did not meet the plaintiff until she was 27 years of age when she and her mother visited the plaintiff in New Zealand in 1970. She said that the deceased, at that time, took her to New Zealand to meet the plaintiff. She said that the trip to New Zealand was for her to meet the plaintiff, her brother, and that she wanted to meet him. She said that she had been brought up as an only child and having been told at the age of 19 that she had a brother she wanted to meet him. She agreed that the plaintiff stayed at the deceased's home between December 1973 and April 1974. She said that in 1974 the plaintiff came to Melbourne after the death of his adoptive mother and stayed with her son. She said that the plaintiff asked her not to tell the deceased that he was in Melbourne. She said that in 1981 and 1982 she visited her son at St Arnaud where he was working for the plaintiff. She denied that after the plaintiff left the deceased's home in 1984 and moved to Moorabbin he contacted the deceased frequently. She said that she did not know where the plaintiff lived in Moorabbin. She further denied that the plaintiff maintained a telephone contact with the deceased after he had moved to Wodonga in 1995. She was asked whether she was surprised to learn that the plaintiff was destitute, to which and she replied, "John has always been broke". It was part of her evidence that the plaintiff had sought to borrow and had borrowed money from her on occasions. When it was put to the defendant that she was in court to protect her assets, she replied that she was there for the principle of her mother's Will to defend her mother's Will. When it was put to her that she also sought to make sure the house, that she believed was hers, was not to be sold, she replied, "My father bought that house". She denied that she had exaggerated her contribution towards the maintenance of the deceased's house.

110. Her evidence was that the plaintiff did not have contact with the deceased as he had asserted and further that the plaintiff had exaggerated his relationship with the deceased. She said that the plaintiff had stayed with the deceased for a period in 1984 because he had no money and nowhere to live.

113. Margaret Weber, a niece of the deceased who is 70 years old, gave evidence that she had kept in touch with the deceased on a regular basis for some 50 years prior to her death and that she had lived in Melbourne until 1998 and visited the deceased on a weekly basis at her home. She said that she had only met the plaintiff on one occasion and that was some 30 years ago. She said that during the time that she kept contact with the deceased, the deceased never discussed the plaintiff with her or his contact with her. In cross-examination she was asked whether she saw the plaintiff during the time that he lived in the home of the deceased in 1984. She said that each week she visited the deceased and that on no occasion did she see him and that the deceased never said that he was there.

116. The witness, Noeleen Singline, gave evidence that she met the deceased through a friend when she was 16 years of age. She said that while living in Melbourne during the period 1972 to 1974 she spent most weekends at the home of the deceased. She described the state of the house at that time as "very run down". She deposed in her affidavit, sworn 14 May 2001, that at that time the gas heater was temperamental such that the deceased did not use it but used two kerosene heaters. She further deposed that the floorboards were hazardous to the extent that the deceased would point out which boards she could walk on. She deposed that on one occasion her bed fell through the floorboards. In her affidavit she deposed as to the contact that she had with the deceased during the period from 1975 until the time of the deceased's death. She deposed that she had met the plaintiff on two occasions in the late 1980s. She gave evidence that during the week preceding her death the deceased was asleep a lot of the time when she visited her, but on one occasion the deceased said to her, "Look at everything Sandy has done with the house, Noeleen, it would have fallen down around me by now". She further gave evidence that over time she had discussions with the deceased about the renovations that were carried out to the house. She said that the deceased, in speaking to her, said it was going to be the defendant's house when she was gone and that she said that on a number of occasions, the last one of which was during the week before she died. She said that on that occasion the deceased basically said, "Look at everything Sandy's done with the house if it wasn't for her it would have fallen down around me by now".

119. She gave evidence that the deceased had told her that she had had a son before being married, that he had suffered polio and she could not afford to look after him and that he had been adopted when he was very young. She said she did not recall the deceased speaking a lot about the plaintiff's adult life, saying it was mainly the very early years when the deceased was first in Melbourne and the plaintiff was a baby.

122. In cross-examination she agreed that she had not lived in Melbourne during the last 20 years and agreed that her knowledge of the relationship between the plaintiff and the deceased would be limited.

125. There was also tendered on behalf of the defendant an affidavit sworn by Athol Thacker who deposed that he had known the deceased for some 24 years. He deposed that he had been told by the deceased on many occasion that the defendant had spent many thousands of dollars on the house to make it comfortable. He deposed that the deceased was always upset at these times as she did not have the money to pay for it herself, but that she told him that everything would be okay eventually as the house would be left to Sandra and, therefore, Sandra was only spending the money on her own house.

128. He deposed that he last saw the deceased in late 1988 and during a conversation with her he casually asked if she had heard from the plaintiff but he was told by the deceased in no uncertain terms not to mention "that name in my house".

131. There was also relied on by the defendants an affidavit of Darron Twikler sworn on 11 May 2001. He is the son of the defendant and her former husband, Chris Twikler. In 1980 he was employed as a trades assistant by the plaintiff at St Arnaud. He worked at the mine for some 18 months before it was shut down. After living with the defendant and the deceased in Melbourne for some three months he then obtained employment at the Proserpine-Buddha Gold Mine which the plaintiff was managing. He deposed that the defendant looked after the deceased from 1982 until 2000 which included cleaning and maintaining the house, renovating it and attending to the deceased's personal needs during this time. Twikler deposed that from 1986 he saw the deceased and the defendant each fortnight. He deposed that in 1999 the defendant sold her business to look after the deceased. Further, he deposed that during the period from 1994 to 1998 he did not recall the plaintiff contacting the deceased. He deposed that he visited his cousin, Ronald, a son of the plaintiff, who lived in Albury and he would ask the plaintiff to ring the deceased and the defendant but the plaintiff had no interest in talking to them at all. He deposed that in 1998 the plaintiff came to Melbourne for a few days after being told that the deceased was ill.

134. In cross-examination he said during the last year of the deceased's life at times she seemed to be in a daze but at other times she could be quite good. He said that from the time the deceased broke her hip her health really deteriorated.

137. In cross-examination Twikler was asked whether he would regard the plaintiff as a member of his family? To which question he replied, "Not as such". He agreed that it was possible that the plaintiff could have telephoned the deceased or the deceased could have telephoned him without him knowing. It was put to him that he had no knowledge of what the relationship between the plaintiff and his mother was to which he replied, "From what Nan would say they didn't have a good relationship".

140. At the time the plaintiff was adopted by Joseph Coombes and Ormal Coombes in 1933 the effect of that adoption was provided by s. 7 of the Adoption of Children's Act 1928. Sub-section 1 of that section provided -

"(1) Upon an adoption order being made, all the rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock, and in respect of the same matters and in respect of the liability of a child to maintain its parents the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock; Provided that, in any case where two spouses are the adopters, such spouses shall in respect of the matters aforesaid and for the purpose of the jurisdiction of any court to make orders as to the custody and maintenance of and right of access to children stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother respectively."

144. Sub-section (2)(a) dealt with the entitlement of the adopted child to succeed to the property of adopter or adopters. Subject to the provisions of sub-sections (a)(i) or (ii) it was provided that after the making of the adoption order the adopted child should be entitled to succeed to the property of the adopter or adopters to the same extent as would have been the case if the child had in fact been a child born to the adopter or adopters in lawful wedlock.

147. Sub-section (2)(b) provided that otherwise than provided by sub-ss.(i) or (ii), "the adopted child as and from the adoption order shall not have any right of succession to the property of `its' natural parent or parents, which, if the adoption order had not been made, might have been claimed (whether under an intestacy or disposition) by such child as a child born to its natural parent or parents in lawful wedlock, unless in the case of a disposition such child is expressly named therein."

150. It is to be noted that by s. 139 of the Administration and Probate Act 1928 (as at the time of the plaintiff's adoption) it was provided -

"If any person disposes of his property either wholly or partly by will or codicil in such a manner that upon his death his widow or children or any of them is or are left without sufficient means for their maintenance and support or if any person disposes of her property either wholly or partly by will or codicil in such a manner that upon her death her children or any of them are left without sufficient means for their maintenance and support the Court may in its discretion if it thinks fit upon the application by or on behalf of the widow or children or any of them order such provision as to the Court seems proper having regard to all the circumstances of the case to be made out of the estate of such deceased person in or towards the maintenance and support of such widow or children or any of them."

"'Children' does not include any child who is over eighteen years of age or any female person who is over twenty-one years of age or married."

158. By s. 3 of the Adoption of Children Amendment Act (No. 5666 of 1953) which came into operation, September 1953, s. 7 of the 1928 Act was substituted, so as to provide as is relevant to this proceeding, as follows:

"7(1) Subject to this Act when an adoption order is made thereupon by virtue of such order - (a) the adopted child shall for all purposes civil and criminal and as regards all legal and equitable liabilities, rights, benefits, privileges and consequences of the natural relation of parent and child be deemed to be a child born to the adopter or adopters in lawful wedlock and not the child of any other person; (b) the adopter or adopters shall for all such purposes be deemed to be the father or mother (as the case may be) of such child as if such child had been born to such adopter or adopters in lawful wedlock; (c) the natural parents (and, if the adoption order is made in respect of an infant who has been previously adopted, any previous adopter) of the child shall for all such purposes be deemed to cease to be the parents of such child."

162. In Denhert v The Perpetual Executors and Trustees Association of Australia Ltd[1] which was determined, having regard to the provisions of the Adoption of Children's Act, before it was amended by Act No. 5666 of 1953, it was held that an adopted child was able to apply pursuant to s. 139 of The Administration and Probate Act 1928, as it then stood, for provision to be made from the estate of the testator who had adopted the applicant when she was a young child. The only persons able to make application under the provisions of the Administration and Probate Act, as it then stood, were the widow or widower and the children of the testator.

165. Dixon J, when considering the provisions of s. 7(1) and (2) of the Adoption of Children Act 1928 (before amendment by Act No. 5666 of 1953) at p. 187, said:

"...an adoption order made under that provision put an end to the child's potential claim under s. 139 of the Administration and Probate Acts to a provision out of the estate of either of his natural parents, on the death of the parent..."

169. The effect of an Adoption Order is now provided by Division 2 Part III of the Adoption Act 1984 (as amended). Section 53(1) of that Act provides:

"(1) subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order - (a) the adopted child shall be treated in law as a child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents shall be treated in law as the parent or parents of the child as if the child had been born - (i) to the adoptive parent; or (ii) to the adoptive parents in lawful wedlock; (b) the adopted child shall be treated in law as if the adopted child were not a child of any person who was a parent (with a natural or adoptive) of the child before the making of the adoption order, and any such person shall be treated in law as if the person were not a parent of the child; (c) the relationship to one another of all persons (including the adopted child and the adoptive parent or former parent of the adoptive child) shall be determined on the basis of the foregoing provisions of this section so far as they are relevant; (d) any guardianship of the adopted child shall cease to have effect; and (e) any previous adoption of the child (whether effected under the law of Victoria or otherwise) ceases to have effect."

Section 54 of the Adoption Act provides:

"(1) the provisions of section 53(1) have effect in relation to dispositions of property whether by will or otherwise and whether made before or after the commencement of the adoption of Children Act 1964 except that - (a) those provisions do not effect a disposition of property by a person who, or by persons any of whom, died before the commencement of that Act; and (b) those provisions do not effect a disposition of property that took effect in possession before the commencement of that act."

175. I have referred to the provisions of s. 139 of the Administration and Probate Act 1928 as it was convenient to do so by reference to s. 7 of the Adoption of Children's Act 1928 which was applicable at the time that the plaintiff was adopted by Joseph and Ormal Coombes in 1933. It is not necessary in these proceedings to further trace the history of the "family" provisions in the Administration of Probate Act (which is set out by Brooking JA in Popple v Rowe[2] to the time of his judgment - 20 March 1997). It is to be noted that in Popple v Rowe it was held that the word "children" in s. 91 of the Administration and Probate Act did not include step-children of the deceased who were the children of the deceased's wife but not children of the deceased and who were never adopted by the deceased and that such step-children had no standing to bring an application pursuant to s. 91 of the Administration and Probate Act as it then stood. Brooking JA in his judgment at P655-6 said:

"The history of the legislation in Victoria dealing with family provision very strongly suggests that the words `widow', `widower' and `children' used in the present s. 91 are not used in any loose sense and that `children' means, except to the extent to which other legislation like the Adoption Act has effect the natural children of the deceased."

179. I do, however, set out the terms of s. 91 of the Administration and Probate Act 1958 as existing before that section was substituted by s. 55 of the Wills Act 1997 which came into operation on 9 October 1997. That section provided:

"Notwithstanding anything in this Act to the contrary where after the commencement of the Administration and Probate (Family Provision) Act 1962 any person (hereafter in this part called `the deceased') dies, and the distribution of his estate affected by his will (if any) or by the operation of the provisions of D6 of Part 1 and 1 of this Act or both by his will and the operation of the said provisions is such not to make adequate provision for the proper maintenance and support of the deceased's widow or widower or children the court may, on application by or on behalf of the said widow, widower or children, order that such provision as the court thinks fit shall be made out of the estate of the deceased for such widow or widower or children. For the purpose of this section `widow' includes any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony or maintenance whether pursuant to an order of any court or otherwise."

183. Had s. 91 of the Administration and Probate Act not been amended by s. 55 of the Wills Act 1997, by reason of the provisions of ss. 53 and 54 of the Adoption Act 1984 the present plaintiff would have had no standing to institute and maintain the present proceeding because in law he was to be treated as not a child of the deceased testator but rather as a child of Joseph and Ormal Coombes.

186. However, by the insertion of a new section into s. 91 of the Administration and Probate Act 1958 by s. 55 of the Wills Act 1997 very significant amendments were made to s. 91 of the Administration and Probate Act 1958. Section 91 (1)(2)(3) of that Act now provides:

"(1) 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 a responsibility to make provision. (2) The Court must not make an order under sub-section (1) in favour of a person unless - (a) that person has applied for the order; or (b) another person has applied for the order on behalf of that person. (3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by - (a) his her will (if any); or (b) the operation of the provisions of Part I of Division 6; or (c) both the will and the operation of the provisions - does not make adequate provision for the proper maintenance and support of the person."

190. In her Second Reading Speech made with respect to these amendments to Part IV of the Administration and Probate Act 1958 in the Assembly on 9 October 1997 the Attorney-General said:

"At present, Part IV of the Administration and Probate Act 1958 enables a testator's family maintenance application to be made to the County Court or Supreme Court by a deceased widow, widower or children requesting the Court to make provision out of the estate of the deceased for the proper maintenance and support of the applicant. These provisions are quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased's estate from making a claim. The need for amendments to the Act to enable a wider category of persons to make testator's family maintenance applications has been recognised for a while. The Labour government introduced two bills to address this situation but neither bill proceeded as a result of concerns that the amendments proposed would result in unfair outcomes for certain parties. This bill introduces amendments to the Act to enable a wider group of people to apply to the Court for testator's family maintenance. The bill empowers the Court to make an order for provision out of the estate of a deceased person for the maintenance and support of a person for whom the deceased had the responsibility to make provision. The bill does 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."

194. The threshold question that must be determined on this application is whether it has been established that the deceased testator had "responsibility" to make provision for the proper maintenance and support of the plaintiff out of her estate. That question must be assessed and determined by reference to matters as they stood at the date of the death of the deceased.[3]

197. In the Oxford English Dictionary, the word "responsibility" is defined to include - "2a With a and pl. A charge, trust or duty for which one is responsible."

200. In Grey v Harrison[4] the Court when considering the provisions of s. 91 of the Administration and Probate Act 1958, before amended by s. 55 of the Wills Act 1997, after considering the judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse[5] declined to follow the dicta of their Honours where after referring to the judgment of Salmond J in Re Allen; Allen v Manchester[6] they said that "references to `moral duty' or `moral obligation' may well be regarded as a gloss on the statutory language"and held, that the criteria to be applied on an application under that provision of the Administration and Probate Act was what a wise and just testator would consider to be his or her moral duty. Having regard to the speech of the Attorney-General on the Second Reading of the Bill to amend s. 91 of the Administration and Probate Act and her reference specifically to the amendment which would enable a "wider category of persons" to make such applications such as the present to include those who have a "moral claim on the deceased's estate", I am of the view that when assessing whether the deceased had "responsibility" to make provision for the proper maintenance and support for the plaintiff out of her estate the question to be addressed, is whether in all the circumstances as a wise and just testator, did the deceased have a moral duty to make provision by her will for the proper maintenance and support of the plaintiff out of her estate?

203. Pursuant to s. 55(4)(a) of the Act it is provided:

"(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."

207. The fact that, by virtue of s. 53(b) of the Adoption Act 1984, the plaintiff is to be treated in law as if he was not the child of the deceased does not prevent the Court determining that the deceased had a "responsibility" to make provision for the proper maintenance and support of the plaintiff out of her estate. One of the matters that the Court must have regard to in determining this threshold question is not only whether there existed "any family" relationship between the deceased and the plaintiff but whether any "other" relationship existed between the deceased and the plaintiff. It is relevant, in my view, when determining this latter issue, to have regard to the fact that although in law the plaintiff is to be treated as not a child of the deceased the fact is that the deceased was the natural mother of the plaintiff. It was by reason of that fact that there existed a relationship between the deceased and the plaintiff.

210. I am satisfied that there was, existing between the deceased and the plaintiff, a relationship which had as its foundation the fact that the deceased was the natural mother of the plaintiff. However, what must be further considered is the "nature of the relationship". That matter is not limited to the fact that although in law the plaintiff is to be treated not as a child of the deceased she was, in fact, his natural parent.

213. On the evidence before the Court there exists a considerable variance as to what was the nature of the relationship existing between the plaintiff and the deceased during her lifetime. This is particularly so when regard is had to the evidence of the plaintiff and the defendant. Each has a personal interest in this proceeding to advance their account of matters relevant to this matter. I have had the advantage of seeing each person give evidence before the Court. I accept the evidence of the defendant as to this matter in preference to that of the deceased and his wife. Further, the evidence of the defendant, relevant to this matter, is supported by the evidence of other witnesses.

216. I accept that the defendant did not know of the existence of the plaintiff until she was some 19 years of age and that she did not meet him until she was 27 years of age when the deceased took her to New Zealand for her to meet the plaintiff as she had wanted to meet him. I accept the evidence of the defendant that from time to time there was contact had between the plaintiff and the deceased. No doubt the plaintiff obtained satisfaction from the fact that there was some on-going contact between himself and his natural mother during her lifetime. I am satisfied, however, that the relationship between the plaintiff and the deceased was not a close relationship. I do not accept the evidence of the plaintiff's wife that the relationship between the plaintiff and the deceased was a close mother and son relationship.

219. I accept that in 1984 the plaintiff and his present wife stayed in the home of the deceased for a period of time. I accept the evidence of the defendant that when the plaintiff left the deceased's home on this occasion he did so without providing any forwarding address and that it was not until later that his whereabouts became known. I do not accept that the plaintiff made contact with the deceased on frequent occasions. I further accept that the defendant on occasions sought to encourage the plaintiff to make contact with the deceased but that the plaintiff did not make meaningful response to the defendant's endeavours.

222. The extent and nature of the relationship existing between the plaintiff and the deceased is to be seen further from the evidence of Margaret Weber. If there existed between the plaintiff and the deceased a close and on-going relationship one would have expected that the deceased would have spoken to Margaret Weber about the plaintiff, his life and his affairs generally. I accept the evidence of the Margaret Weber that during her visits with the deceased, she never discussed the plaintiff with her. Again the evidence of Darron Twikler supports the conclusion that the relationship between the plaintiff and the defendant was not a close relationship but existed to the extent only that from time to time contact was had between the plaintiff and the deceased. Although there was contact from time to time had by the plaintiff with the deceased and this had as its foundation the fact that the deceased was the plaintiff's natural mother, there existed no close relationship between them. The plaintiff stayed in the house of the deceased in 1984. This suited his convenience at the time. However, he left leaving no forwarding address. On another occasion when in Melbourne he specifically requested that the deceased not be informed of that fact. Again, when the deceased was ill and the plaintiff was requested to make contact with her he did not do so.

225. At the death of the deceased her estate, in substance, comprised the house situated at 43 Somers Street, Bentleigh. This house had been purchased by the father of the defendant, the deceased's husband. The plaintiff made no financial or other contribution towards the maintenance and support of the deceased or towards the repair and maintenance of this house. I accept that at a time before the defendant commenced to live with the deceased this house became in a dilapidated state and was in a run down condition.

228. I accept the evidence of the defendant that she had repairs, maintenance and alterations carried out to the house and property, from time to time, at her own expense. These moneys expended by the defendant to repair, alter and maintain the house and property did result, in my view, in the house and property now presenting to be able to be valued as it was by the real estate valuer, Sly. Although the defendant did not pay any formal "board" or "rent" to the deceased during the time that she permanently resided with her, the moneys spent by the defendant in the repair, maintenance and alterations of the house enabled the deceased to be able to live in this property and in some degree of moderate comfort.

231. I accept the evidence of the defendant as to when and why she terminated her formal employment. From the time that the defendant commenced to live permanently with the deceased she provided support and companionship for the deceased and enabled her to continue to live in her home. The support provided by the defendant to the deceased during the deceased's lifetime and, in particular, the moneys expended by the defendant on the repair, maintenance, alteration and upkeep of the home of the deceased gave rise, in my view, to the deceased having a responsibility to the defendant, the sole beneficiary of her will, to make provision for the defendant by her will. This is a matter which s. 91(4)(f) of the Act directs that the Court must have regard to.

234. I accept the evidence of the defendant that the deceased had told her that on her death the house would be hers and it was by reason of that fact that the defendant did not take any proceedings to seek to have established that she had an equity or interest in the house. I accept the evidence that the deceased, when speaking to Noeleen Singline, she, from time to time, stated that on her death the house would be that of the defendant and that she spoke to this person in the manner described by her shortly before her death. In my view these statements of the deceased demonstrated that the deceased recognised that she had responsibility towards the defendant by reason of the moneys expended by her in the repairs, maintenance and alterations to the house and property and provides clear evidence of the reasons why the deceased, by her will, gave her estate to the defendant and did not make provision for the plaintiff. This matter is relevant in determining whether the deceased had responsibility to make provision for the plaintiff for his proper maintenance and support out of the estate.

237. The plaintiff, on the evidence and by his appearance in Court, is a sick and frail man. I accept the evidence as deposed to by Dr Robinson in his two affidavits as to the nature of the plaintiff's health and as to his future. The plaintiff was a sick man at the time of the death of the deceased. The plaintiff resides in rented accommodation and is supported and maintained by the pensions to which he is entitled and which he receives. He was a pensioner at the time of the death of the deceased. The fact that the plaintiff lives in rented accommodation does not give him the security of accommodation that he would have if he was the owner of a property in which he lived, however, it would appear that for some time he has lived in his present house and there is no evidence before the Court that any step is being taken by the owner of the property to terminate his occupancy of that house.

240. The defendant is presently engaged in employment and has assets and funds as deposed to by her and referred to in her evidence some of which are presently accessible by her whereas other parts of her assets constitute that set aside by way of a superannuation package to provide for her on her retirement. The house, being the substantial part of the estate of the deceased, and in which the defendant resides, although valued by the real estate valuer, Sly, at $375,000 is a two bedroom home which is modest in description and appearance as shown on the report of the valuer.

243. Having considered the above matters that I have referred to I have reached the conclusion, in this case, that the deceased did not have responsibility to make provision out of her estate for the proper maintenance and support of the plaintiff. Accordingly, the discretion vested in the Court pursuant to s. 91(1) of the Administration and Probate Act 1958 does not arise for the Court to exercise in the circumstances of this case. The proceedings of the plaintiff must be dismissed.

[1] [1954] HCA 47; [1954] 91 CLR 177.

[3] Cf Re Adams [1967] VicRp 115; [1967] VR 881 at 886.

[4] [1997] 2 VR 359, Tadgell JA at 360-361, Callaway JA at 365.

[5] [1994] HCA 40; (1994) 181 CLR 201 at 209.

[6] (1921) 41 NZLR 218, at 220-1.