Henderson v Rowden [2001] VSC 267

Supreme Court of Victoria|2001-08-14|Before: BEACH. J.

This is an application brought by the plaintiff against the executor of the estate of his late step-mother pursuant to the provisions of s.99 of the Administration and Probate Act 1958 (the Act) seeking an extension of time within which to make an application to the Court that adequate provision be made for his proper maintenance and support out of the estate of the deceased.

It is trite law that an applicant seeking such an extension must provide a sufficient reason explaining the delay in making the application (Brown v. Holt[1]; Shannon v. Public Trustee[2]) and must make out an arguable case that the deceased had a responsibility to make provision for the proper maintenance and support of the applicant but failed to do so. of the Act; Clayton v. Aust).

In the present case it is agreed by the defendant that the plaintiff has provided a sufficient reason explaining the delay in making the application. I agree with that concession. It is unnecessary, therefore, to give further consideration to that aspect of the application.

To my mind the real problem the plaintiff faces in this case is in establishing that it is even arguable that his late step-mother had responsibility to make provision for his proper maintenance and support out of her estate.

The plaintiff was born in England on 14 April 1949 and is now aged 52. He was an only child.

On some unspecified date prior to the year 1963, the plaintiff and his parents migrated to Australia.

In 1963 the plaintiff's parents separated. It would appear that the plaintiff's mother had formed a relationship with another man and left the plaintiff's father to live with the other man, leaving the plaintiff in the custody of his father.

In 1963 or 1964 the plaintiff left school and commenced employment in "the post office". After some unspecified period the plaintiff joined the navy serving in it for a period of some 18 months. Thereafter he commenced driving coaches, an occupation he has followed to the present time.

In the year 1967 the plaintiff's father married the deceased. On 13 August 1969 the plaintiff's father and the deceased became registered as the joint proprietors of a property being Unit 16, 41 Nepean Highway, Elsternwick, a property which became their matrimonial home.

To purchase the property the plaintiff's father and the deceased obtained a loan of $5,427 from the E.S. & A. Savings Bank Ltd. I should add that the total purchase price for the property was $9,250.

The evidence before me is that it was the deceased who paid the difference between the loan and the purchase price to the vendor and that it was the deceased who made the payments due under the mortgage until the mortgage was paid off. In other words there is no evidence that the plaintiff's father made any financial contribution to the purchase of the property. I should perhaps add in that regard that the deceased was employed at the time of her marriage to the plaintiff's father and did not retire until she was 67. That she was a very frugal person is clear from the moneys she accrued following the death of the plaintiff's father in 1980 and to which I shall refer in a little more detail shortly.

Pausing at this point, there is no evidence to suggest that the plaintiff ever lived with his father following his father's marriage to the deceased, or that he ever made any financial or other contribution to the wellbeing of his father and/or the deceased.

Following the death of the plaintiff's father in 1980 the deceased, who apparently disliked the plaintiff (see para. 22 of the affidavit of the defendant sworn 4 July 2001), made no effort to contact the plaintiff. Indeed if the evidence of the defendant is accurate the only contact the plaintiff had with the deceased after the death of his father was a visit in 1986, a Christmas card he sent to her in 1999 and a letter he sent to her in 2000.

The lack of contact between the plaintiff and the deceased following the death of the plaintiff's father is perhaps demonstrated by the fact that when the plaintiff contacted the defendant after the funeral of the deceased he asked the defendant whether the deceased had been living in the property at the time she died or had been living in an elderly persons' home.

The nett value of the deceased's estate for probate purposes was approximately $214,000. Of that sum, $115,000 represented the value of the unit at Elsternwick, the balance being made up of moneys in bank accounts or debentures and two small holdings of shares - 200 in Westpac Banking Corporation and 800 in Woolworths Ltd.

I have described the deceased as being a frugal person. In my opinion that is established by the following facts. Although there are no banking records available relating to the deceased's accounts prior to 1993, the defendant has been able to provide the following information to the Court concerning some of them since that date.

On 13 September 1996 the credit balance in the deceased's account with the ANZ Banking Group was $434.30. By the date of her death it was $4,371.45.

As at 6 January 1994 there was $797.26 in the deceased's account with the Commonwealth Bank. By the date of her death that amount had increased to $3,309.33

As at 18 November 1993 the credit balance in the deceased's pensioner security account with the Commonwealth Bank was $32,823.10. By the date of death of the deceased that balance had increased to $55,284.88.

In my opinion those facts in relation to the three bank accounts justify the opinion that the deceased was very frugal with her money.

In his affidavit the plaintiff has sworn that he and his wife each receive unemployment benefits of $310 per week. In addition to that income the plaintiff receives a small income working as a coach driver two days a month.

In the light of the various matters to which I have referred, in particular the lack of any relationship between the plaintiff and the deceased, that is, other than the fact that the plaintiff is the step-son of the deceased, I am not persuaded that it is even arguable that the deceased had any moral obligation to make adequate provision for the maintenance and support of the plaintiff, let alone any responsibility to do so.

Whilst it is true that in certain cases a step-mother may have such a moral obligation or responsibility to a step-child, in my opinion the mere fact of such a relationship, in the absence of any other factor, does not give rise to such an obligation or responsibility.

Had the plaintiff made a financial or other contribution to the welfare of the deceased in the years prior to her death, that would be one thing. But the evidence in the present case demonstrates that that was not the case.

Somewhat surprisingly, by her last will and testament the deceased left one eighth of her residual estate to the plaintiff and left the sum of $2,000 to each of his two children. In my opinion that went beyond any possible moral obligation she may have had to the plaintiff. As to the balance of the estate (apart from some small bequests) the deceased left it to her god-child who had what was described in the affidavit of the defendant as a "mother-daughter" type relationship extending over 50 years.

In the final analysis, I am not satisfied that the plaintiff has any claim upon the estate of the deceased. His application for an extension of time, therefore, is dismissed. I order that the plaintiff pay the defendant's costs of the application including any costs reserved.

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