HRNG ADELAIDE, 14-15 January 1991 #DATE 31:5:1991 Counsel for the Plaintiff: Mr. N. J. T. Swan Solicitors for the Plaintiff: Finlaysons Counsel for the First Defendant: Ms. L. E. Millard Solicitors for the First Defendant: Olssons Counsel for the Second and Third Defendants: Mr. S. H. Milazzo Solicitors for the Second and Third Defendants:
Caldicott and Co.

ORDER Order that the defendants pay plaintiff a legacy of $20,000 out of the estate.

JUDGE1 MATHESON J The plaintiff is the only daughter of George Lambeff who died at Ceduna on 23 March, 1989 aged 63. She claims provision from his estate pursuant to the provisions of the Inheritance (Family Provision) Act 1972. 2. The last will and testament of the deceased was made on 14 March, 1988 and probate was granted to the defendants on 15 November, 1989. They were the executors named in the will. The second and third defendants were the only sons of the deceased. The will directed that upon payment of debts and funeral expenses the whole estate should be held upon trust for the two sons in equal shares absolutely. As at the date of swearing of the first affidavit of the Trust Manager of the first defendant, namely 28 February, 1990, the estimated value of the assets in the estate was $220,058.87. As at 24 December, 1990, he deposed that the value of the net estate was $209,522.76. The major assets were a home unit at 15/17 MacFarlane Street, Glenelg North, valued at approximately $50,000 in which the deceased's former de facto wife Barbara Lambeff, the mother of his two sons, lived, and a leasehold property at Ceduna, upon which there was an old stable, eighteen powered caravan sites and a sand mine, and valued at $144,500. In addition, the deceased was the joint owner of a property at 13 Park Terrace, Ceduna with Barbara Lambeff, the capital value of which, according to the Valuer-General, was $120,000. The deceased lived with Barbara Lambeff from about 1956 to 1980 with several separations. She is not a party to these proceedings. 3. The deceased married the plaintiff's mother in Czechoslovakia on 28 June, 1945 and the plaintiff was born there on 21 June, 1946. The deceased, the plaintiff's mother and the plaintiff moved to Perth in the State of Western Australia in July 1950. The deceased and his wife separated in 1956, and in or about that year he commenced an association with Barbara Lambeff and moved to Ceduna where the deceased lived until his death. On 3 October, 1957, the second defendant, Nicholas George Lambeff, was born and on the 5 April, 1961 the third defendant, Christopher Jordan Lambeff, was born. The deceased worked in Perth as a builder and continued so to work at Ceduna after setting up house there. 4. The plaintiff attended high school until the end of second year and then did a secretarial course at a technical college in Perth. Her mother married Leons Romanovskis in Perth on 29 December, 1965. The plaintiff remained with her mother until October, 1966, and then moved to Melbourne where she has lived and worked ever since. Her mother and her step-father moved to Adelaide in about November, 1974. At the time of her father's death, the plaintiff was employed by Scottish Amicable Life Assurance Society. Since the merger of that company with Colonial Mutual Life Assurance Society Limited, the plaintiff has been working as a marketing officer. She proof reads marketing literature, assists with advertising and performs a variety of tasks within the marketing department. Her gross salary is $33,000. She has purchased a flat at 13 Hawkesburn Road, South Yarra. It cost $78,000 and the mortgage was $66,000. It will be repaid when she is 60. It was valued in January 1990 at $120,000. Her only other assets are clothes, furniture and jewellery. She is unmarried and has had no children. 5. It is convenient here to quote from the plaintiff's affidavit sworn herein on 12 December, 1989 and which was tendered as an exhibit before me. In paragraph 18 thereof the plaintiff deposed: " When I overcame my distress at being abandoned by my father in 1960, I wrote to him on three occasions, the first being in 1967, endeavouring to re-establish contact with him. I received no acknowledgment of the letters and interpreted this behaviour to be his total rejection of me. My letters were written at about five-yearly intervals. I believe the lack of response from my father at the time was due to the animosity he harboured towards my mother and/or the influence held over him by his de facto wife, Barbara." 6. The plaintiff's mother and stepfather, Mr. and Mrs. Romanovskis, are each about 70. They own a house at Reynella for which they paid $71,000. Together they have savings amounting to approximately $30,000. There are no children of the marriage. Mr. Romanovskis has been in ill health. Mrs. Romanovskis gave evidence that in about 1983, some mutual friends brought the deceased to see Mrs. Romanovskis and her husband. She gave him news of the plaintiff and what she was doing. Some time in 1988 she went twice to see him when he was ill in the Royal Adelaide Hospital and showed him a picture of the plaintiff. She told the plaintiff that her father was in hospital, and the plaintiff spoke to him on the telephone at length on two occasions and a friendly relationship was thereby established. On one such occasion, he asked her to come and see him at Ceduna. She said that she could not afford it. He said that he would send her money, but she got the impression that he could not really afford to do so, and so she did not see him. Neither the plaintiff nor her mother ever received any maintenance or gifts from the deceased after the separation. 7. The defendant, Nicholas Lambeff, is 33 years of age. He has a wife and two children. They are expecting their third child. Nicholas Lambeff left school after attempting second year High School twice. He has four restricted building licences. He said that from about the age of ten he worked for the deceased, helping him establish the caravan park, the largest asset of the estate. He said that any remuneration he received for his services was inadequate when compared with the number of hours he worked. He stated that he continued to help the deceased until his death because he had told him on many occasions that one day the caravan park would belong to him. He and his family have lived in the caravan park for about the last fifteen years. He says that he and his wife have managed it since 1980, and for their livelihood they rely on the income earned from it and from some irregular contract work. His wife has no formal qualifications, but has assisted with the running of the caravan park and has worked as an assistant in a local chemist shop on a casual basis. They do not own any real estate. Their assets are worth approximately $27,500. 8. The defendant, Christopher Lambeff, is 30 years of age. He has a de facto wife and two children. He left school after failing fourth year High School, and has no qualifications. He also worked for his father from an early age in the caravan park. He has had various labouring jobs. His de facto wife has been a governess and a teacher's aide, but has not worked since the birth of their first child. They have no real estate. Their assets are worth approximately $30,350. They have been living at 13 Park Terrace, Ceduna, rent free, in the house now registered in the name of Barbara Lambeff. 9. The defendants called as a witness, a Mr. B. M. Arnold, Senior Wills Officer of the first defendant. I unhesitatingly accept his evidence. He saw the deceased at the Ceduna Hospital on 10 March, 1988. Before going to the hospital, he met a Mrs. Jenethea Peterson at whose request arrangements had been made for him to go to see the deceased. After he arrived at the hospital with Mrs. Peterson, there was, what he described "as a little bit of nastiness" between Mrs. Peterson and Nicholas Lambeff, who arrived with his wife and Christopher Lambeff. I accept the evidence of Nicholas Lambeff that he asked Mrs. Peterson to leave and that she said words to the effect: "I will see you in trust homes". Mrs. Peterson left. Mr. Arnold stated that the deceased gave him the names of his two sons, as being the only intended beneficiaries of his will and there was no mention of the plaintiff. The deceased's last will was prepared on the instructions given to Mr. Arnold. 10. The plaintiff called Mrs. Peterson to give evidence. She and her husband were involved with the deceased's business affairs. She said "apart from lending money, (I did) quite a lot of his paper work. I was his friend, confidante, business helper and lover". Much of her evidence was objected to by the defendants. She said that not long before his death the deceased wanted to sell the caravan park and buy a property in Cairns in which she and the deceased would live. The relevant documents were not executed because of his illness. Further, she said the deceased had mentioned the plaintiff to her on a number of occasions, the first being a year prior to his death. She said that he told her he felt badly about the way that he had left her, that he had renewed his relations with her and her mother, and that he wished to make some provision for her. He wanted a new will drawn up, and she says that was the reason why she arranged for a representative of the first defendant to see the deceased in the Ceduna Hospital. 11. I do not find it necessary to rule on the admissibility of Mrs. Peterson's evidence as to what the deceased allegedly said to her about moving to Cairns or about making provision for the plaintiff, because, having heard her cross examined, and observed her in the witness box, I have absolutely no confidence in her veracity. I found her evidence about a payment by the deceased to her of $15,000 unconvincing. Her evidence left me with the strong suspicion that far from wanting the deceased to benefit his daughter, her real concern was to have his will altered in her favour and that when that did not happen, she successfully persuaded the plaintiff to challenge the will. I reject her evidence. 12. Section 7 of the Inheritance (Family Provision) Act 1972 states: " 7(1) Where - (a) a person has died domiciled in the State or owning real or personal property in the State; and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. (2) ... (3) The Court may refuse to make an order in favour of any person

on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient. (4) - (6) ..." (My underlining.) 13. The plaintiff's case is that she was left without adequate provision for her proper advancement in life. 14. I was referred to the judgment of King CJ in In the Estate of Puckridge (1978) 20 SASR 72. At p.77 his Honour said: " The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v. Lang [1960] HCA 73; (1960) 104 CLR 124, per Dixon CJ at p 128. In McCosker v. McCosker [1957] HCA 82; (1957) 97 CLR 566, the expression was held to be wide enough to embrace the provision of capital for the poultry farming business of a claimant. The word 'proper' is of considerable importance and means proper in all the circumstances of the case: Bosch v. Perpetual Trustee Co. Ltd. (1938) AC 463; McCosker v. McCosker (supra). The circumstances include the size of the estate, the needs of the applicants, the nearness or remoteness of the applicants' blood and personal relationship to the deceased, any special claims which the applicants may have on the bounty of the deceased, and competing claims of others." 15. In Bosch v. Perpetual Trustee Co. Ltd. at pp 478-479, their Lordships said: "... that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father." 16. As Dixon CJ said in Blore v. Lang at p 128: "Some moral claim to which a wise and just testator might be expected to respond must exist, but it may rise out of relationship." 17. I was also referred to In Re. McCaffrey (1982) 29 SASR 582. At p. 585 Cox J said: "The questions posed for the Court in an application made under s.7 of the Inheritance (Family Provision) Act are, first, whether an applicant has been left without adequate provision for her proper maintenance, education or advancement in life, and, secondly, whether any provision ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the applicant. ... The relevant date against which that must be judged is the date of the testator's death ... I must have regard to all the circumstances existing then. They will include, not only what was then known to the testator, but all relevant facts whether known or appreciated by him or not. ... While I look, of course, at the circumstances existing in 1980, there is a prospective element involved because I may properly have regard to what could reasonably have been foreseen by the testator at that time as well as the circumstances then in existence." 18. I agree with Mr. Milazzo that there are now two totally separate family units. I also agree that upon the evidence the plaintiff has a secure, well-paid job, that she has a substantial equity in her flat and that she has no dependants. She has good prospects of benefiting from the estates of her mother and step-father, although the poor health of her step-father raises a question-mark over that. The deceased's sons on the other hand have little in the way of assets and they have families to support. The estate is by no means large. They are, however, both young and fit. 19. It may well be that the plaintiff has established that she has a special claim upon the estate within the meaning of some of the earlier cases. I do not need to find one, because I do not think it is necessary to show such a claim on a statute worded as is the South Australian statute, and on authorities, such as McCosker v. McCosker [1957] HCA 82; (1957) 97 CLR 566, Kleinig v. Neal (No. 2) (1981) 2 NSWLR 532 at 538 and Bondelmonte v. Blanckensee (1989) WAR 305. 20. The plaintiff was abandoned by the deceased at the age of ten, and had no support from him thereafter. She later made efforts to befriend her father. She has done nothing to disentitle herself. It is true that she has acquitted herself reasonably well in life without her father's support, but I think she would have done better with proper support for her advancement in life. I think her claim succeeds, but in all the circumstances the provision should be modest. I order that the defendants pay her a legacy of $20,000 out of the estate.