James v Day [2004] VSC 290

Supreme Court of Victoria|2004-08-17|Before: Cummins J

FAMILY PROVISION - Administration and Probate Act 1958, s.91 - Claim by step-children of deceased - Whether plaintiffs persons for whom testatrix had responsibility to make provision - Considerations applicable - Whether plaintiffs in need of provision - Claims granted.

The deceased made her last will on 13 January 2003. She died 9 days later, on 22 January 2003. At the date of her death the deceased was 83 years of age, having been born on 27 August 1919. Probate of her will was granted to the defendant, Neil Atherton Day, on 31 March 2003. The defendant is a nephew of the deceased.

The deceased by her will appointed her nephew, Neil Atherton Day the defendant, and her niece, Marjorie Ellen Day as the executors of her will. The deceased left her jewellery, furniture, and household and personal effects to her niece, Marjorie Ellen Day absolutely. She left the residue of her Estate equally between her nephew, Neil Atherton Day, her niece, Marjorie Ellen Day and her nephew Paul Melville Day. They are the children of the deceased's sister. The defendant Neil Atherton Day is a university senior lecturer and Marjorie Ellen Day was a management consultant but is currently unemployed. Paul Melville Day is a medical practitioner but has suffered a stroke and his work capacity is very limited. The net value of the residuary Estate is of the order of a little over $360,000.00 and after deduction of estimated costs of this proceeding the value of the residual Estate will be of the order of a little over $300,000.00.

The deceased and Walter Henry Fuller, the father of the plaintiffs, married on 19 December 1954. That was the second marriage for each of them. There were no children of that marriage.

Walter Henry Fuller, the father of the plaintiffs, was born in 1908. He married Rachel Margaret Fuller, who was born in 1906, on 26 May 1932. The first plaintiff was born to them on 30 April 1935. The second plaintiff was born to them on 14 March 1938. There were no other children of the marriage. Their mother died on 10 November 1952.

Rae Yvonne Fuller was born on 22 August 1919. She married on a date unrevealed by the evidence. There was one child of the marriage, Ian Thompson, who was born in 1943. The evidence does not reveal the date or the circumstances of the cessation of the marriage. Ian Thompson committed suicide in 1970.

The deceased and the father of the plaintiffs, Walter Henry Fuller, married on 19 December 1954.

Walter Henry Fuller died on 26 May 1992, then aged 82 years. The deceased did not remarry thereafter. As I have said, the deceased died on 22 January 2003, then aged 83 years.

At the date of the death of the deceased, the first plaintiff was 67 years of age. She married Peter James on 19 April 1958. There are three children of the marriage, born in 1966 and 1967, the younger two being twins. The first plaintiff and her husband are now retired and live at Tugun, Queensland.

At the date of the death of the deceased, the second plaintiff was 64 years of age. He married Margaret Fuller on 12 March 1961. There are six children of the marriage, born between 1961 and 1970. The second plaintiff and his wife are now retired and reside in South Geelong.

The evidence of the first plaintiff, Marie Louisa James, by affidavit and orally before me, was as follows.

The first plaintiff deposed that during her early years she resided with her parents and her brother in a house owned by her parents at 147 Swanston Street, Geelong. Her father was the sole breadwinner for the family. He worked for Victorian Railways first as a shunter and then as a guard until his retirement at age 65. The first plaintiff had a happy childhood and a good relationship with her parents. About eighteen months after her mother's death, her father met her step-mother and on their marriage the step-mother and her son Ian moved into the home. From what she was told the first plaintiff understood that her step-mother did not bring any financial resources into the marriage and was dependant upon the first plaintiff's father to provide for her and her son whilst he was alive. In late 1955 or early 1956 the Swanston Street house was sold by the first plaintiff's father and another home acquired by him at 259 Malop Street, Geelong where the family moved to live. The first plaintiff is not aware whether her father acquired that property in his own name or in the joint names of himself and the first plaintiff's step-mother. The first plaintiff left school at age 15 to work in a number of secretarial jobs in the Geelong area. Whilst she was working and living at home she paid half of her wage to her father for board. After her father's second marriage she noticed a change in him in that he became subservient to his wife and retired into himself. The first plaintiff's step-mother was a cold and uncaring person to the two plaintiffs and never made any real attempt to form a close relationship with either plaintiff. The first plaintiff attempted on numerous occasions to include her step-mother more into her life but the step-mother did not respond to those efforts. After the marriage of the first plaintiff she moved to Melbourne with her husband and they both worked there. Whilst living in Melbourne the first plaintiff came to Geelong on a regular basis to visit her father and step-mother at the Malop Street house. Two years after moving to Melbourne the first plaintiff and her husband moved to Casterton where they lived for about ten years. During the time in Casterton they would come to Geelong to visit her father during annual leave from work and on other occasions during each year. Her father was happy to see them during those visits and always made them welcome in his house. In 1970 the first plaintiff returned with her family to live in Geelong where her husband and herself both obtained employment. On most Sundays after returning to Geelong she would visit her father and step-mother at their house with her husband and children. During those visits her step-mother rarely left them alone with her father. Her step-mother was polite but distant during the visits. Shortly before her father's retirement in 1974, on one of the few occasions on which she was able to speak to her father alone, he told her that he was going to use his superannuation from the Railways to pay out the mortgage on the Malop Street house and eventually sell the house and move to Queenscliff with his wife, which he did in August 1983, to 16 Bethune Street, Queenscliff. After his move to Queenscliff the first plaintiff and her family continued to visit her father and step-mother on a regular basis until her father's death. Her father rarely discussed his financial affairs with either plaintiff. Other than the Queenscliff house and its contents the first plaintiff was not aware of what other assets her father had at the time of his death. Under his will he left the whole of his estate to his wife. Neither plaintiff contested the will. It was the first plaintiff's belief at the time that as the house and whatever else there was had been acquired from assets built up by her father over the years, their step-mother would make provision for the plaintiffs upon her death. After their father died, the first plaintiff and her husband moved to Queensland and returned to Geelong every second Christmas. From 1992, having moved to Queensland, she saw her step-mother twice. The first plaintiff exchanged Christmas cards, birthday cards, letters and phone calls with her step-mother for a number of years until the step-mother wrote to her in 1998 and said that she had nothing in common with her or her family and that the first plaintiff should cease the correspondence. The first plaintiff did not see her step-mother after that. The first plaintiff was residing in Queensland when her step-mother died.

The first plaintiff deposed that it was of some surprise to her that her step-mother made no provision for either plaintiff under her will. The first plaintiff considered that she had been a dutiful, caring and loving daughter of her father and respectful and considerate of her step-mother. The first plaintiff did not contest her father's will as she fully expected her step-mother to look after both her brother and herself in her own will. The first plaintiff was also mindful of not wanting to upset her step-mother by making any demands on her at the time of her husband's death and of her being able to remain peaceably in the Queenscliff house.

The first plaintiff resides with her husband in a duplex apartment at Tugun, Queensland. They each receive the age pension, totalling $740.00 per fortnight, and some $1,000 per annum from managed investments. They have no other income. Their assets, jointly owned, are the apartment, with a value of some $250,000.00, a motor vehicle worth $10,000 and managed investments of $80,000. Their bank accounts total a little under $15,000. Furniture and personal effects total $5,000.

The first plaintiff has for the past twenty years suffered a muscular problem which necessitates her wearing a brace on her right leg and wearing special shoes. She suffers from arthritis in her left leg which requires regular treatment.

The evidence of the second plaintiff, Trevor Walter Fuller, by affidavit and orally before me, was as follows.

The second plaintiff deposed that as a child he lived with his parents and sister at his parents' house at 147 Swanston Street, Geelong. He got on well with his family members and considers that he had quite a happy childhood. At age 14½ he left school and obtained an apprenticeship as a painter and decorator. After his apprenticeship was completed he obtained employment in his trade for a number of years and then went into business on his own as a painter and decorator until his retirement in 1999 due to ill health. Not long after his mother's death, his father met the plaintiff's step-mother and after their marriage the step-mother and her son moved in to live at the Swanston Street house. Shortly after that the Swanston Street property was sold and the plaintiff's father acquired another house at 259 Malop Street where the family then went to live. At age 18½ the second plaintiff left home to move into private board and later to reside with his wife and his own family. It was the second plaintiff's understanding that his step-mother did not bring any financial resources into the marriage and that for the whole of the time his father worked she was dependent upon him financially. The property at Swanston Street had been acquired by his father during his marriage to the second plaintiff's mother and the proceeds of the sale of that property were used to acquire the Malop Street property. The father told the second plaintiff that he had used his superannuation to pay off the mortgage on Malop Street and to help acquire the property he eventually purchased at 16 Bethune Street, Queenscliff where he lived with the plaintiff's step-mother until his death. After the second plaintiff left home he kept in regular contact with his father and step-mother up to the date of his father's death. Before the second plaintiff's marriage he visited the home on at least two occasions each week. After his marriage those visits became less frequent because of the second plaintiff's family commitments but he continued to see them on a regular basis with his wife and children. Over the years he had an excellent relationship with his father as did his wife and children. He believed that he had an appropriate relationship with his step-mother, treating her with respect and consideration as his father's spouse. It appeared to him that she did not particularly care to have him and his family in the house and she was often distant and aloof whilst in their presence. After his father's death he continued to visit his step-mother at Queenscliff but it became apparent in the end that she had no real interest in himself or his family. Despite this, he had an amiable relationship with her. He saw his step-mother four or five times a year. He last saw her five days before her death, at which time she was very ill. The second plaintiff was aware that on his father's death he left the whole of his estate to his wife. Both plaintiffs were of the opinion that it would be best not to disturb or upset their step-mother by making a claim against their father's estate and for this reason they did not do so. It was their belief that their step-mother would in the end make provision for them from her own estate for what would have been their inheritance if their father had not remarried. Rearing a large family and providing for their needs was not an easy task. There were many occasions on which the second plaintiff could have requested financial help from his father but did not wish to be a burden on him or upon the second plaintiff's step-mother.

The second plaintiff deposed that because of the financial demands made on him in caring for his family, and having been forced to give up his business for health reasons and retire early on a disability pension, he has been left with very few financial resources. He resided with his wife in a unit at Newcomb, Geelong and in which he had a one-third interest with the remaining two thirds' interest being held by a son and a daughter. At the time of giving evidence before me he had recently sold his share of the unit, for which he will receive the sum of $63,000.00 after costs, and he and his wife were residing in rented accommodation at the cost of $150.00 per week. Both he and his wife are now age pensioners and their joint income from this source is $740.00 per fortnight. Assets jointly owned by him and his wife comprise a motor vehicle valued at $3,000.00 and furniture and household effects valued at $3,500.00.

The defendant Neil Atherton Day and Marjorie Ellen Day are executors of the will of the deceased. They are respectively a nephew and a niece of the deceased. Together with another nephew, Paul Melville Day they are the residual beneficiaries equally of the Estate.

The evidence of the defendant, Neil Atherton Day, university senior lecturer, by affidavit and orally before me, was as follows.

The defendant deposed that he believed that Walter Henry Fuller (Walter Fuller Snr.) did not provide for Ian Thompson. When Ian was between the ages of 11 and 19 he lived with the deceased and Walter Fuller Snr. Ian then came to live with the defendant's family and thereafter received no financial support from Walter Fuller Snr and the deceased. The defendant's father supported Ian fully between 1962 and 1964 and thereafter partly until 1968 when Ian moved elsewhere. The deceased did bring financial resources into her marriage with Walter Fuller Snr. She received a legacy from her mother in 1968. That legacy was from the sale of a house in Loch Street, Geelong owned by her mother and divided between the two daughters. The evidence does not reveal the quantum of the legacy or the amount brought by the deceased into the marriage, assuming she did. Following the deceased's marriage with Walter Fuller Snr she worked part-time as a shop assistant for an undisclosed period. Walter Fuller Snr and the deceased were the joint owners of the property at Malop Street, Geelong which they bought in about 1956. They sold that property for $54,000.00 in 1984 and purchased the Bethune Street, Queenscliff property for $61,000. That property also was purchased jointly.

The defendant deposed that as a child he frequently visited the deceased and Walter Fuller Snr's home with his parents. Their home was welcoming and warm, with affection given indiscriminately on children, step-children, him and his siblings. He never witnessed any arguments or disputes between Walter Fuller Snr and the deceased and their respective children. The defendant formed a close and affectionate relationship with both the deceased and Walter Fuller Snr. Walter Fuller Snr was a quiet, unassuming, kind person. The deceased was not distant, dominating, or disapproving of young children in the house. They were both always warm and welcoming to all children. Walter Fuller Snr was not in the least reticent to speak openly in front of his wife. The first plaintiff and her family did not visit Walter Fuller Snr and the deceased nearly as often as the first plaintiff says. So far as the defendant is aware, when Walter Fuller Snr died he had no assets other than his possessions at the Queenscliff home. After Walter Fuller Snr's death the deceased used to mention receiving Christmas cards from the first plaintiff and she said that they were on very bad terms. The deceased was openly bitter at what she perceived as the first plaintiff's lack of concern for her father during the time of his last illness. The deceased also commented that she believed that the first plaintiff's principal reason for keeping in touch was to establish a claim on her estate. The first plaintiff did not keep in contact with the deceased by visiting her at Queenscliff or writing to her. The deceased told the defendant that she rarely heard from or saw the first plaintiff, and that she was perfectly content that there be no greater degree of contact between them. The defendant believes that the real reason for her not contesting Walter Fuller Snr's will was the fact that there were no assets of any value in his estate. The deceased referred to occasional visits from the second plaintiff and his family, and she spoke kindly of him. On the one occasion in or about 2001 when the defendant was present when the second plaintiff visited, the deceased was courteous and affable towards him. The deceased's last will reproduced her prior will with some minor corrections and its contents represented a pattern of disposition of her estate upon which she had settled long before. Walter Fuller Snr and the deceased and the deceased's sister Marjorie Day and her husband Frank maintained a warm family relationship during their lives. The defendant always had a close relationship with the deceased, and in her later years visited her virtually every Saturday. They would lunch together, shop and attend to chores and jobs around the house. From 1998 when the deceased became ill she used to ring the defendant every morning to report on her health. After the deceased suffered several strokes in 2002 the defendant spent many hours visiting her in hospital every other day. They shared a like interest in music and spent many hours listening to recordings and drinking coffee together. The defendant spent part of the afternoon and evening of the day of her death with her at the Geelong Hospital until the deceased passed away. The defendant's brother Paul was the deceased's favourite nephew and godson. He was in daily contact with the deceased by telephone to check that she was safe and comfortable, and after Walter Fuller Snr had died he used to visit her at Queenscliff generally every three weeks, staying overnight. The defendant's sister Marjorie Ellen spent approximately one week in two at a house in Queenscliff, and when she was there she used to call on the deceased daily during each visit, and the deceased would visit her when her own health and mobility allowed. A major factor in the decision by Walter Fuller Snr and the deceased to move to Queenscliff was the fact that the defendant had a share in the family holiday house there. They were frequent visitors to the house, and they liked the town and the family connection. They stayed there whilst they waited for the home they bought in Bethune Street to become vacant. When Marjorie Ellen later bought an interest in the holiday house this reinforced the family ties. The defendant was very close to the deceased's son Ian from childhood. In later years the deceased celebrated Christmas at the defendant's farm, or at his brother Paul's house in Fitzroy or, when illness prevented the deceased from travelling, at the Day family's shared house in Hesse Street, Queenscliff. The deceased's final Christmas was at a rehabilitation hospital in Geelong where the defendant's family all assembled for a picnic dinner in the grounds and an evening meal together in the gardens. The deceased's sister, niece, nephews and their children constituted her family. Despite her invalidity, it was because of their care, support and attention, together with that of her kind neighbours and the excellent local health services, that she was able to continue to live at home, which she strongly desired. It was because of this extended family support that she did not have to sell her home to support her in institutional accommodation. Neither of the plaintiffs made any contribution to this support of the deceased. They had little or nothing to do with the deceased during those years when the deceased's needs were greatest. They took no care of her, and during her last years displayed no interest in her welfare and maintenance.

The defendant is employed as a university senior lecturer. He resides on a small rural property just north of Geelong, on which are run 500 sheep. He has suffered substantial losses over the last two years as a result of the drought. As a result of his recent divorce his assets, the quantum of which were not revealed in evidence, have been substantially diminished. The defendant has two children, aged 24 and 22 years, both of whom are studying at university and who are dependent on him.

The defendant deposed that his sister, Marjorie Ellen Day, has been unemployed since late 2002 and is currently seeking re-employment. In the will she was described as management consultant.

The defendant deposed that his brother, Paul Melville Day, is a medical practitioner whose capacity for work has been very significantly affected by a severe stroke which he suffered at the age of 42 and which has rendered him paralysed on one side. He walks with difficulty and his left arm remains paralysed. He has two dependant children, one being at school and the other at university.

Other than the above, the income, assets and financial position of the defendant, Marjorie Day and Paul Day were not revealed in evidence of the defendant.

In an affidavit by the first plaintiff in reply to that of the defendant, the first plaintiff deposed as follows. Her father supported Ian Thompson during Ian's first year at University but Ian left after one year. The first plaintiff did not believe that the legacy obtained by her step-mother in 1960 was large, and in any case her father already had his own home in Swanston Street, Geelong, which he still had at the time of his marriage to the first plaintiff's step-mother. It was the sale of the Swanston Street property that had been jointly owned by the first plaintiff's own mother and father which provided the funds to purchase the property at Malop Street, Geelong. The first plaintiff had caused title searches to be made of property owned by the three residual beneficiaries of the will of the deceased. Those searches show that each of those beneficiaries owns a number of properties, of unknown worth or encumbrance.

In an affidavit by the second plaintiff in reply to that of the defendant, the second plaintiff confirmed the matters set forth in the affidavit in reply of the first defendant.

I must say that I was most impressed by the evidence of the defendant's devotion to and care of the deceased in her last years. That devotion and care would have meant a great deal to the deceased.

I accept the evidence of each of the plaintiffs as truthful and accurate.

It is plain that there were difficulties in the relationship between the deceased and the first plaintiff. The relationship between the deceased and the second plaintiff was better.

However the primary question before me is whether the deceased had a responsibility to make provision out of her Estate for the proper maintenance and support of either or both the plaintiffs. If so, I must determine whether adequate provision for the proper maintenance and support of the respective plaintiff has been made out of the Estate and if not the amount to be ordered for such provision. In so considering, I shall have regard to the 12 matters set forth in s.91(4)(c)-(p) Administration and Probate Act 1958 and the general common law.[1]

The present s.91 was introduced by s.55 Wills Act 1997.[2] The second reading for that Act is contained in (1997) 436 Hansard (Assembly) 433 and relevantly at 436 where the Attorney-General described the existing provisions as "quite restrictive". As s.91 comprehends but does not specify step-children, one must turn to the considerations set out in the governing legislation and to which I have referred and to judicial authority. That authority, in relation to s.91, is pre-eminently Coombes v Ward[3]; McKenzie v Topp[4] and Henderson v Rowden[5].

The New South Wales decisions, helpfully marshalled by Mr Boaden for the defendant, are of marginal utility only, given the difference between the relevant legislation in that State and this. I have found the judgment of Nettle J (as then he was) in McKenzie v Topp to be of especial assistance.

In the present case, it would be wholly inadequate to consider the question of the responsibility of the deceased to make provision for the plaintiffs in isolated concentration upon her circumstances at the immediate time of her death. The question of her responsibility to make provision, in the circumstances of this case, must be approached holistically and historically. When so approached, it is apparent that the genesis of her Estate was the father of the plaintiffs. Rightly, he provided for his wife by joint ownership of the major asset, the house, which passed to her by survivorship. It matters not that the plaintiffs did not seek to make a claim upon his death because they did not wish to disturb his widow's last years or whether they did not because there was little in his estate. The question of the deceased's responsibility to make provision for her step-children necessarily in this case bears an historical aspect.

In my view, by reason of the derivation of the deceased's financial position, she did have a responsibility to make provision for the proper maintenance and support of each of the plaintiffs. She did not make any provision.

In determining the amount of provision properly to be ordered, I bear in mind the criteria set forth in s.91(4) and the general common law. The Estate is a modest one. The beneficiaries and in particular the defendant Mr Day have acted worthily towards the deceased over time. The beneficiaries are not apparently wealthy and in their different respective ways face uncertain futures. However both plaintiffs are in particularly modest circumstances and face their older years.

In all the circumstances I conclude that the proper provision for the maintenance and support of each of the plaintiffs and for which the deceased had responsibility to make, is one quarter of the Estate: that is, one quarter for the first plaintiff and one quarter for the second plaintiff. That leaves one half of the estate to be shared equally between the three named beneficiaries.

I so order. I order that costs of these proceedings, unless agreed, be taxed and paid out of the Estate.

[1] The test is that of the standards of a wise and just testatrix, or in other words of a fair and reasonable woman in the community (White v Barron & Anor (1980) 114 CLR 431 at 440 per Stephen J) and is applied as at the date of death (Coates v National Trustees Executors and Agency Co Ltd & Anor [1956] HCA 23; (1956) 95 CLR 494 at 508 per Dixon CJ).

[2] It came into operation on 20 July 1998. Contrast the decision of the Court of Appeal in Popple v Rowe & Ors (1998) 1 VR 651, given on 12 March 1997.

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