Lee v Hearn [2002] VSC 208

6. The plaintiff, Robert Lee, was born in Malaysia in 1952. He is now aged 50. He came to Australia in 1972 to study graphic art in Adelaide and graduated from a graphic design course in 1976. Over the next four or so years Mr Lee had a number of positions in his chosen field. He went to Melbourne and worked for Monahan Damen & Adams (a large advertising company at the time but which no longer exists) and was sponsored by this firm to become a permanent resident of Australia. He then went to Sydney and worked for Avon cosmetics. Around 1978, Mr Lee was appointed Art Director at Saatchi Australia in Singapore. Unfortunately, he contracted hepatitis at this time and when he returned to Sydney spent around a year receiving sickness benefits. Also at this time, Mr Lee was disowned by his family because it seems of his decision not to return to live in Malaysia. In 1981 he returned to Adelaide and worked for Young & Rubicam, an advertising agency, but for only about nine months. After this period he pursued the objective of running his own business. He went to the Gold Coast in 1983 to take up a partnership with a friend in a small design business. This venture was not successful and in around 1985, Mr Lee entered a partnership in a Gold Coast advertising agency. Once again, the venture was unsuccessful and the partnership was dissolved in 1989. The dissolution marked the end of Mr Lee's professional career as a graphic artist. Since then, he has only worked on a part-time basis in sales positions.

9. In 1974, Mr Lee became acquainted with members of the Urquart family. Whilst still a student in Adelaide he worked with a Miss Urquart at a pizzeria. They became friends and knowing that he was finding it difficult to make ends meet as a student Miss Urquart suggested to him that in exchange for cheap rent he could help her grandfather, Walter Urquart senior around the house and in the garden. He did just this, moving into a neighbouring property belonging to Walter Urquart senior. The two became friends. In turn, Walter Urquart senior arranged for the introduction of Mr Lee to his son, Walter Urquart junior, some time in 1976, when Mr Lee moved to Melbourne and once again a friendship developed between Mr Lee and a member of the Urquart family.

12. Walter Urquart junior owned a property on the Gold Coast. According to Mr Lee, he and Walter Urquart junior at one point considered going into business together designing and manufacturing swimwear on the Gold Coast. It seems that Walter Urquart junior regarded Mr Lee as his "protégé". Miss Hetherington, the deceased, had become acquainted with Mr Lee through Walter Urquart junior some time in 1976. Walter Urquart junior died on 2 August 1987. It was Mr Lee who found him collapsed in his unit on the Gold Coast and drove him to a hospital and later organised a flight to Melbourne where Walter Urquart junior died.

15. Walter Urquart junior (hereafter referred to as "Walter Urquart") was a wealthy man and in his will of 14 May 1987 he left his entire estate of around $1,000,000 - except a legacy of $10,000, to one Roy William Osmac Pugh - to the woman with whom he had enjoyed a close relationship for a number of years, Olga Agnes Hetherington, the deceased in these proceedings. Mr Lee was not a beneficiary under Walter Urquart's will. Miss Hetherington, who was 61 years old in 1987, upon the Urquart inheritance became a wealthy woman in her own right. Either in accordance with the wishes of Walter Urquart or from her own acknowledgment of the friendship between Mr Lee and Walter Urquart, Ms Hetherington gave Mr Lee $10,000 from the estate she inherited.

18. It is undoubted that Miss Hetherington and Mr Lee were friends. Upon acquiring property on the Gold Coast from the Urquart estate, Miss Hetherington allowed Mr Lee to live in one of those properties at Unit 11, Port Merion ("the Port Merion property") rent free from 1989 onwards. Mr Lee attended to the day to day running of the property, fulfilling the functions of caretaker. Miss Hetherington spent time with him in the unit when she visited the Gold Coast between 1990 to 1997 during the Melbourne winters. When Miss Hetherington was staying, Mr Lee helped her with the shopping and cooking and drove her wherever she wanted to go in his car. Miss Hetherington travelled widely overseas during this period also until the final two years of her life which were spent in Melbourne.

21. Miss Hetherington died on 25 June 2000 and in her will of 1 June 1988 she left the plaintiff, along with five other beneficiaries, a legacy of $20,000. The rest of her estate, valued at over $2,200,000, was left to a charitable trust established in memory of Walter Urquart.

25. The plaintiff gave evidence on his own behalf. In addition, he called as witnesses Jon Edmunds and Marjorie Edmunds, friends of the deceased, and Warren Humphries, former site manager of the Port Merion property in Queensland. The plaintiff relied upon three affidavits, the deponents of which were not called. They were Gregory Alan Morris, valuer Lynette Smith, estate agent and Dr Tony Bose, doctor to the plaintiff.

28. The plaintiff's evidence was that he and the deceased had a mutual obligation to care for one another in accordance with the wishes of Walter Urquart. He said that shortly before his death Walter Urquart asked the deceased to "look after Olga". Mr Lee said that the deceased told the plaintiff that Walter Urquart had asked her to look after him because of his close friendship with the Urquart family. The plaintiff said that he took this to mean that Walter Urquart had asked the deceased to support him.

31. Over the years the deceased told the plaintiff that she would look after him. Mr Lee asserted that she said she had "inherited me [Mr Lee] as part of the estate of Walter Urquart Junior". Mr Lee also said that the Port Merion property was referred to as "ours" and the deceased assured him he would always have a roof over his head and that the unit was his home. He said she told him, "Don't worry, you have a place here. You will always have a home to come back to. You don't have to go out and be sold for a pup."

34. The plaintiff said that the deceased spent six to nine months with him every year at the unit and two weeks every Christmas. These statements were challenged in cross-examination and, on the evidence of other witnesses supported by the dates of travel in and out of Australia in the deceased's passport, were shown to be quite exaggerated. Between the years 1990 and 1997 the most time that the deceased spent at the Port Merion property was about four months; the shortest period was about six weeks. She did not stay at the Port Merion unit during 1994, nor at all in the last two and a half years of her life. The plaintiff said the deceased often spent Christmas with him. However, I do not accept that was so. She spent some Christmas periods in Melbourne, went on a cruise to New Zealand in a particular year and, in 1997, stayed with her cousins, the Hendricks, in Sydney.

37. It was the plaintiff's evidence that whenever the deceased stayed with him he was at her beck and call to such an extent that he could not work. However, the plaintiff acknowledged that the deceased at no time asked him not to work and devote his time to her. He cooked for her and took her shopping or wherever she wanted to go. According to the plaintiff, the deceased was in poor health from about 1996 onwards. He claimed that the deceased had a heart condition, suffered from colds and flu and from depression. No medical evidence was led to support the claims of the deceased's ill health. Furthermore, according to the plaintiff the deceased's poor health was exacerbated by consumption of alcohol.

40. The plaintiff swore two affidavits. The first, on 4 January 2001. The second, on 5 February 2002. No mention of the deceased's drinking was made in the plaintiff's first affidavit. When challenged in cross-examination as to the reasons for the omission the plaintiff responded that he was reluctant to speak on such a matter out of respect for the dead. The allegation that the deceased was a heavy drinker, or at the least a woman who because of her slight build and age was easily affected by even a light or moderate consumption of alcohol has, despite professed reluctance to speak on the matter, come to figure large in the plaintiff's case. It was the plaintiff's evidence that his role of carer was made burdensome because of the deceased's drinking which necessitated that he bathe her and assist her to the toilet.

43. In addition to attending to the deceased's personal needs, it was the plaintiff's evidence that he "co-ordinated" the management of her property interests in Queensland. However, in cross-examination the plaintiff accepted that all he actually did amounted to re-directing mail and attending body corporate meetings. The plaintiff also accepted that the deceased did not tell him of plans she contemplated to sell the Port Marion unit in late 1999/2000.

46. In regard to work prospects, the plaintiff's evidence was that he has no prospects of working full-time in the advertising industry again. He said that he is "in the scrap yard" with an out of date portfolio and no knowledge of computers. He conceded that he has done nothing to upgrade his qualifications. The plaintiff said that he suffers from diabetes and this condition affects his capacity to work. The plaintiff claimed, also, to have had a nervous breakdown but no medical evidence was led on this point.

49. The plaintiff called two members of the Edmunds family as witnesses. Jon Deane Edmunds is the son of Marjorie Edmunds, a close friend of the deceased. Mrs Edmunds lives on the Gold Coast and saw the deceased whenever she was up from Melbourne. Mr Edmunds saw the deceased at least once a year for the last 12 years of her life. Mr Edmunds was with the deceased when she died. His evidence was that the deceased had a drinking problem for about the last ten years or more before she died. He described an incident at a dinner some ten years before her death when the deceased fell into a bath and became incontinent. He also said that she was intoxicated at his wedding in 1994. In addition, he gave other examples of a birthday party in 1985 and of a Christmas gathering in Mount Macedon some years ago when the deceased was overcome by alcohol. In cross-examination Mr Edmunds accepted that the deceased may not have been an excessive drinker but that because of her diminutive build she was easily and quickly affected by alcohol. Mr Edmunds said that he observed the health of the deceased declined in the last four to five years of her life. Mr Edmunds referred to the plaintiff, Mr Lee, as the deceased's "carer". He said that the relationship between the plaintiff and the deceased was a "domestic type of relationship" in that they squabbled from time to time. Mr Edmunds said that the deceased had told him she would never get rid of the plaintiff.

52. Marjorie Edmunds, known as Terry Edmunds, was the deceased's friend of over 40 years. She gave evidence along similar lines to her son in relation to the deceased's drinking. She said that the deceased had been a heavy drinker for the last ten years of her life and gave general evidence of the deceased becoming intoxicated and incontinent at social occasions.

55. I accept that the Edmunds were close friends of the deceased and were to some extent uncomfortable in giving public accounts of her alleged intoxication. I further accept that the deceased sometimes showed the effects of alcohol consumption at social functions over the years. However, I do not accept the evidence was sufficient such as to make out a claim of persistent heavy drinking on the part of the deceased and consequential dependence. Further, the evidence did not make out the claim that the plaintiff's role as alleged "carer" to the deceased was more onerous as a consequence of her drinking. It is unfortunate in the overall circumstances that such evidence was led as it besmirched the reputation of the deceased.

58. Walter Desmond Humphries was called by the plaintiff. He was, together with his wife, the body corporate manager of the Port Merion apartments where the unit of the deceased was located. He gave evidence of his observations of the relationship between the plaintiff and the deceased and the drinking habits of the deceased between 1990 and 1992. He deposed that he regarded the relationship between the plaintiff and the deceased to be comparable to that of mother and son. He said that he observed the plaintiff performing domestic tasks such as washing and cooking. Mr Humphries observed that the plaintiff took the deceased out in his car on a regular basis. He gave evidence that he regarded the deceased as a heavy drinker and saw her on one afternoon at a barbecue "quite affected by alcohol". However, in cross-examination Mr Humphries conceded that his observations were limited to about three or four incidents.

61. The plaintiff claimed that he was entitled to the Port Merion property and an appropriate sum to maintain him. This was reduced during the trial to an amount commensurate with the value of a life intereset in the Port Merion property. Initially, there was no evidence led on behalf of the plaintiff as to the value of his claimed interest in the Port Merion property. After some observations by the court an affidavit by one Gregory Alan Morris, a certified practising valuer in Queensland, with 20 years valuation experience was filed on behalf of the plaintiff when the trial was well advanced. He deposed that the value of a life interest of 25 years in the Port Merion unit would be $292,604. His valuation was based on an estimation of current market rent of $320 per week. The latter figure was deposed to by Lynette Smith, a qualified real estate agent in Queensland with five years' experience. Again, the affidavit of Smith was filed very late. Neither Morris nor Smith were called. The defendant objected to the late filing of the affidavits but was content to address the affidavits in any event. There was no evidence as to the life expectancy of the plaintiff.

64. Finally, the plaintiff relied upon an affidavit sworn by Dr Tony Bose, the treating general practitioner of the plaintiff. Dr Bose deposed that he has treated the plaintiff for a year and that the plaintiff suffers from diabetes which affects his life expectancy and his capacity to work. However, in his affidavit Dr Bose gave no indication as to the extent and manner the plaintiff's illness has affected him. Aside from accepting that the plaintiff suffers from diabetes, I can make no further finding of fact on the basis of Dr Bose's affidavit. The evidence was inconclusive and unsatisfactory. There was no satisfactory evidence before me to establish that the plaintiff is incapacitated for work or that he was so incapacitated or suffered from ill health during the lifetime of the deceased such that she knew or ought to have known that he was dependent upon her.

68. The defendant, Harry Meares Hearn, was the solicitor for the deceased during her lifetime and the executor of her will. He gave evidence on behalf of the estate.

71. Mr Hearn is a solicitor with more than 40 years' experience in probate. He had been the deceased's solicitor since 1987. He drew up her will in 1987 and a codicil to the will in 1993. He saw her on a regular basis including attendances at her home in Melbourne. He estimated that the deceased came to his offices around five to seven times a year. He said that in all the years he acted for the deceased she only mentioned the plaintiff to him on one occasion in relation to the legacy provided for the plaintiff in her will. Mr Hearn said that he observed the deceased to be a fit and active person, who enjoyed walking and was a volunteer for the Anti-Cancer Council for over 15 years. It was his observation that the deceased declined physically in the last 18 months of her life, but deteriorated mentally, only in the last four to five months. He deposed that the deceased enjoyed travel and his evidence, supported by the passport of the deceased, refuted the plaintiff's claims of the amount of time the deceased spent with him on the Gold Coast each year. Mr Hearn gave evidence that when he had attended the deceased at her home in a professional capacity he had never seen any indication that she had difficulty looking after herself nor on any occasion did he ever see her intoxicated or affected by alcohol. However, Mr Hearn acknowledged that he knew the deceased only professionally and not socially.

74. Evidence was given on behalf of the defendant also by Ranald Hugh McCowan, a Queensland solicitor who acted on behalf of the deceased in relation to the purchase of the Port Merion unit. Mr McCowan met the deceased in 1988 and he said that the deceased told him that the plaintiff would live-in, be the "caretaker" of the unit and keep it available for her use. In cross-examination Mr McCowan said the deceased discussed with him the tax implications of having a tenant. He said that in Queensland, stamp duty concessions are available for an untenanted place of residence. It was Mr McCowan's evidence that the deceased discussed the plaintiff's living in the unit with him in this context.

77. The defendant also called Betty Jean Laver, cousin and friend of the deceased. The defendant relied upon an affidavit sworn by one Craig Hendricks, a second-cousin of the deceased. Mr Hendricks was not required to attend court for cross-examination. Betty Laver said that she and the deceased enjoyed social outings together and that she had stayed with the deceased at the Port Merion unit in 1995. She deposed that the deceased was fit and alert as late as May 2000 and that when she stayed with her in 1995 she was active. Mrs Laver said that the plaintiff was working when she visited in 1995 selling mobile phones and was not at the deceased's beck and call. She said that in 1998 the deceased had wanted to sell the unit but did not do so because she would lose money on it due to the Asian economic crisis. Mrs Laver believed that the plaintiff was only looking after the unit until the deceased decided what she would do with it. Mrs Laver gave evidence that the deceased had on no occasion been embarrassingly drunk when she was with her but that she had seen the deceased affected by alcohol in her home. In cross-examination Mrs Laver said the sorts of things she and the deceased did together, such as attending the theatre and the ballet, did not involve alcohol. In further cross-examination Mrs Laver accepted the suggestion that the deceased did not drink in her company but may have done so in the company of others.

80. In an affidavit filed on behalf of the defendant Craig Hendricks deposed that his mother was the deceased's cousin and that he and his sister were two of the beneficiaries of the legacies under the deceased's will. He deposed that the deceased regularly visited the Hendricks family in Sydney over the last 20 years of her life and that when on the three occasions he saw the deceased from 1995 to 1997 she was "active and lucid". Mr Hendricks deposed that the deceased hardly ever mentioned the plaintiff, although he knew that the plaintiff looked after the Port Merion unit for the deceased.

84. There were a number of key aspects of the evidence that were critical to the plaintiff's case. They were the drinking activities of the deceased, the provision of accommodation by the deceased for the plaintiff and the matter of alleged acknowledgments by the deceased during her lifetime of the position of the plaintiff with respect to the Port Merion property. I consider each of these aspects separately.

88. I accept that from time to time the deceased would drink alcohol at social functions. I accept, also, that on some occasions she may have become intoxicated quickly and suffered physically as a result. I accept that on those occasions the deceased may have required assistance from others. On those occasions, of which few were identified, the deceased required assistance from those with her - on some instances it was the plaintiff, on other occasions, it was a member of the Edmunds family. In any event, I cannot be satisfied on the evidence that there were other than a few occasions and in all likelihood no more than ten episodes. Significantly, the deceased was able to live alone in Melbourne until almost the end of her life without assistance. She did not require a resident carer. On the evidence I reject any suggestion that the deceased suffered from an alcohol based problem such that she was dependent on the plaintiff.

(B) The Provision of Accommodation by the Deceased for the Plaintiff

92. I am not satisfied that the deceased was dependent on the plaintiff or, more importantly, was the role reversed. At most, the plaintiff was a caretaker permitted by the deceased to live rent free at the Port Merion property in return for his care taking duties. The arrangement was one that was convenient and financially advantageous to the deceased. The apartment was occupied for security purposes and maintained and, further, ongoing accounts such as electricity and telephone were paid by the plaintiff. In my view, the arrangement between the plaintiff and the deceased was based on friendship and convenience and no more. There was no obligation or duty recognised by the deceased. In addition, none was owed.

(C) The Acknowledgment by the Deceased During Her Lifetime of the Plaintiff's Position

96. The plaintiff relied upon the fact that the defendant had assured him that he would always be able to live at the Port Merion property and that she was concerned as to what would happen to him after she died. In my view, these statements were of no consequence and were insufficient to establish any obligation or duty or acknowledgment thereof owed by the deceased to the plaintiff. Indeed, I accept that the plaintiff contemplated selling the Port Merion unit in 1998. The plaintiff was no more than a caretaker.

99. I turn then to consider the relevant legislation.

103. Victoria was the first Australian jurisdiction to enact testator's family maintenance provisions under the Widows and Young Children Maintenance Act 1906. The legislation was largely based upon New Zealand legislation, the Testator's Family Maintenance Act 1900 (NZ). The first family provision legislation was not enacted in England until 1938.[1]

106. Initially, s.91 of the Administration and Probate Act (and its equivalent legislation in other jurisdictions) was a remedial provision for the widow and dependent children of a testator as Williams J observed in Lieberman v Morris:[2]

"The dominant purpose ... is to enable the court to remedy a breach by a testator of his moral duty as a wise and just husband or father to make proper provision, having regard to his property, for the maintenance, education and advancement of his family."

110. Over the years the family provision legislation in Victoria, in tandem with other jurisdictions, has been expanded to enable a court to order provision from a deceased's estate whether the deceased died testate or intestate,[3] to order provision for extramarital children[4]. With the effluxion of time and the change in community standards and morays the Parliament has amended the family provisions to encompass spouses (not merely widows).

113. Ultimately, the legislation has been expanded so that potential applicants might include persons having a family or other relationship with the deceased. It is the most recent amendment that enables the plaintiff to bring the present claim.

Section 91 of the Administration and Probate Act

117. Section 91 of the Administration and Probate Act in its present form was inserted by s.55 of the Wills Act 1997. It provides:

"91. Power of the Court to make maintenance order

(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 by , deceased had 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 or her will (if any); or

(b) the operation of the provisions of Part I, 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.

(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 related to an application for an order under sub-section (I) -

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."

124. Prior to the amendment to s 91 the testator's family maintenance provision vested in the court a broad discretion. Essentially the approach of the courts had been to adhere to the classic formulation of the court's task upon failure to make provision, as articulated by Salmond J in Re Allen; Allen v Manchester:[5]

"The provision which the Court may properly make in default of a testamentary disposition is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the circumstances."

128. As observed by Ormiston J in Collicoat and Others v McMillan and Another[6] this passage is the most frequently cited in the jurisdiction of testator's family maintenance. See eg Coates v National Trustees Executors and Agency Co Ltd[7] and Hughes v National Trustees, Executors and Agency Co of Australasia Ltd.[8]

131. Collicoat and also Grey v Harrison[9] were both concerned the claims of adult children and looked at what Ormiston J described as 'correlative notions' of moral claim and moral duty. Each case concerned an adult son[10], a class of claimant courts' have been traditionally hesitant to provide for,[11] who were not successful in life. In Collicoat the son was described as the 'lame duck' of the family. In Grey the son was an alcoholic without employment and who after the break up of his family had gone through periods of homelessness. In each case the neediness of the applicant corresponded to the moral duty of the testator to provide.

134. Both cases were hesitant as to High Court authority in Singer v Berghouse.[13] In that case the majority judgment of Mason CJ, Deane and McHugh JJ questioned in obiter the usefulness of notions of morality and moral duty in this area of the law. But in Grey as Callaway JA observed it is only a breach of moral duty which can justify judicial intervention in testamentary freedom an important right in a free society. His Honour stated, at 365:

"The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years . It supplies the norm that the legislature left unexpressed ... It also reflects the view that there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purpose of remedying such a breach."

138. Upon introduction of the amending Bill to Parliament the Attorney-General in the second reading speech stated:

"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 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. To ensure that only genuine applications are made, the bill allows the court to order costs against an applicant if the court is satisfied that the application was made frivolously, vexatiously or with no reasonable prospect of success. The bill requires the court, in determining whether or not provision should be made for a particular applicant, to have regard to a list of factors, including: 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; any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate; the size and nature of the estate of the deceased person; 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 in the foreseeable future; and any benefits previously given by the deceased to any applicant or beneficiary."

142. The post amendment case law has made it clear the common law moral duty or obligation to provide still permeates codification and that the significant changes have been first the possibility of application by a wider class of persons and secondly the application by the court of criteria in making its determination whether or not a claimant should have been provided for or should have been more generously provided for.

145. Since the amendments were enacted there have been very few cases concerned with the expanded classes of applicants. Leahey & Ors v Trescowthick[14] and Sherlock & Ors v Guest & Ors[15] were both cases related to claims of grandchildren whereas Marshall v Spillane and Anor[16] dealt with the claim of an adult brother of the deceased. In all these cases it was held that there is no longer a requirement to meet a prescribed familial relationship rather to satisfy criteria of s.91.

148. The application of the criteria keep the court's task as a factual rather than philosophical determination of moral duty as cautioned against by Ormiston J:

"I consider that the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances. Having regard to what I have said , it is unnecessary to consider further in detail the meaning of the word "moral" or indeed the application of theories of morality to the law which may be fairly left to such writers as H.L.A. Hart, Lon L. Fuller, John Rawls, John Finnis and writers such as those who each year in Jurisprudence and Philosophy ... It is sufficient to say that the word 'moral' used in connexion with the legislation is apt to describe what is generally considered according to accepted community standards to be the obligation of a testator to do what is right and proper for those members of his family whom one would expect to be entitled to a share in the distribution of his or her estate on death".[17]

152. In a very recent decision of McDonald J in Coombes v Ward[18] the importance of moral obligation or duty was recognised again. His Honour followed the authority of Grey v Harrison and its affirmation of a breach of moral duty underpinning this novel area of law.

156. In New South Wales the analogous legislation is the Family Provision Act 1982. Under this legislation a person unprovided for or inadequately provided for under a will may claim under s.6 on the basis of being an "eligible person".

159. An eligible person is a spouse, former spouse, domestic partner or child of the deceased and under sub-s.(6)(d) an eligible person may also be a person;

(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) who is a grandchild of the deceased person, or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

165. The test for persons who cannot bring themselves within the specified categories of familial relationships or of domestic partner is thus twofold. First, a relationship of dependence and second, membership of the same household for a period of time.

168. One of the initial questions addressed by the New South Wales courts was whether this new category of eligibility was still bound up in the notion of family, albeit an extended one.

171. In Churton v Christianson & Ors[19] Mahoney JA was of the opinion that the objective of the legislation was precisely to allow for claims by persons who did not fall within the idea of the family. On the other hand, Priestley JA felt that the idea of family continued to underpin legislative developments in this jurisdiction.

174. A further question for the courts has been whether or not dependency is essentially a financial consideration. There has been competing authority.

177. In Re Fulop Deceased[20] McLelland J was of the opinion that "dependent upon" denoted the provision of financial or material needs. Whereas in Ball v Newey & Ors[21] Samuels JA held that dependency was not a strictly financial concept. His Honour held that the ordinary usage of the word "means a condition of depending on something or someone for what is needed".

180. Samuels J emphasised the need for the court to examine a relationship in its entirety in order to determine the question of dependency and in order to "exclude situations which might present the simulacrum but not the substance of dependency". His Honour gave the example of students living in a shared house where there will be some degree of co-operative living, such as the sharing of expenses and domestic tasks. Such an arrangement will not, however, amount to relations of dependency amongst the householders. It is this recognition that dependency is a factual question which is consistent throughout the case law.[22]

183. Finally, on the question of dependency, in Mackenzie v Baddely[23] it was held that the phrase "partly dependent" does not mean substantially, rather it suggests more than minimally or significantly.

186. Once an applicant has established that he or she is an "eligible person" under s.6(1)(d) of the Act then under s.9 the court must determine what if any provision should be made out of the deceased estate. In doing so the court may under s.9(3) take into consideration certain factors.

"Section 9. Provisions affecting Court's powers under secs 7 and 8 ... (3) In determining what provisions (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(c) circumstances existing before and after the death of the deceased person, and

(d) any other matter which it considers relevant in the circumstances."

193. These factors according to McLelland J in Re Fulop Deceased "when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased".[24] The New South Wales cases are of assistance because they are based on similar concepts to the Victorian legislation.

196. A useful recent discussion of both the concept of dependency and the factors which render an applicant a natural object of testamentary recognition and the interrelatedness of the determination of both questions is that of Mao v Peddeley[25] in which the applicant claimed on the bases of being the deceased's defacto wife or alternatively having been in a relationship of dependency with him. The applicant had had a brief and perhaps ongoing sexual relationship with the deceased in a casual fashion since late 1989 and had lived for the most part since 1991 in the deceased's property in Sydney. The deceased had lived in Thailand since 1989 and it was reckoned that he and the applicant resided together for no more than 66 days during the eight and a half year period between 1991 and his death in 1999. The applicant's claim as defacto wife was dismissed in the main because she had attained permanent residency by claiming to be someone else's defacto wife during the same period but also because the criteria of a domestic relationship imported into the Family Maintenance Act by s.4 of the Property (Relationships) Act were not present.

199. The Master looked at a number of circumstances of the relationship such as at what periods a sexual relationship existed and whether or not it had been an exclusive one, whether the applicant performed domestic tasks for the deceased when he was in Sydney, whether or not they had holidayed and attended social functions together and whether or not they had been acknowledged by family and friends as a couple. These signifiers of intimacy were not present in the relationship and it was found that the applicant was more akin to a caretaker or housekeeper in exchange for free rent. In also dismissing the applicant's claim on the basis of being in a relationship of dependency his Honour averted to the same considerations which made the relationship more properly described as one of mutual convenience.

202. In my view, the new statutory provisions enshrined in s.91 of the Administration and Probate Act whilst expanding the class of eligible persons effectively constituted a codification of the approach taken at common law to testator's family maintenance claims. In my view, the proper approach to the new legislation remains unchanged from that described by Ormiston J in Collicoat, namely, of searching out the touchstone of what a wise and just testator would have thought was the moral duty. Furthermore, there is nothing in the amendments or the extrinsic materials to indicate that the parliament intended to constrain the freedom of the testator unless the testator breached a moral duty owed to the applicant.

205. I turn then to consider each of the criteria set out in s.91(4) of the Administration and Probate Act and apply these principles to the plaintiff's claim.

Application of Legislative Criteria Contained in s.91(4)(e) - (p) to Plaintiff's Claim.

(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.

210. No family relationship existed between the applicant and the deceased. The two were friends and had been for around 25 years. It is difficult however to discern the depth of their friendship.

213. The applicant was one of only five beneficiaries under the deceased's will. Furthermore, the deceased allowed the applicant to live in her property rent free. On one hand it seems she did so out of an acknowledgment of his loyalty and her concern for him. On the other hand it seems the arrangement was one of mutual convenience which the deceased saw as suiting her financial and real estate interests.

216. The varied extent to which the relationship was recognised by others attests its ambivalent nature. For some friends of the deceased the relationship was a close one akin to that of a mother and son, whilst for others the applicant hardly seemed to figure in the deceased's life.

219. I conclude the relationship was one of friendship but no more. I do not accept the applicant was like a son to the deceased.

(f) Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.

223. The deceased had no legal, moral or financial obligation to the applicant nor to any other person. Statements made to the applicant by the deceased to the effect that he should regard the Port Merion unit as his home cannot be taken as conferring upon the applicant a proprietary interest in the unit. Such statements were no more than reassurances to a friend that for the present he need not worry about a roof over his head. Moreover, statements such as ´home sweet home' after a drive do not even import this meaning. Such a statement is really just a pleasantry to which no legal or moral obligation could possibly be attached.

(g) The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject.

227. The estate is a large one and not subject to any charges and liabilities except the costs of these proceedings.

(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 the foreseeable future.

231. The applicant's financial position is poor. He has some personal debt and no savings. He has not held down full-time employment for many years. At 50 with outdated qualifications I accept that it will be extremely difficult for him to obtain well renumerated employment in the future. His financial prospects in the foreseeable future are therefore consequently poor.

(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.

235. The applicant suffers from diabetes. The medical evidence led on his condition allowed no finding to be made on the extent to which his capacities are impaired.

238. I accept generally that the applicant does not enjoy robust health but find that his inability to hold down full-time employment has been more the result of his failure to keep abreast of developments in his chosen field rather than a consequence of ill-health.

242. The applicant is now 50. I accept at this age his employment prospects are diminished.

(k) Any contribution (not for adequate consideration) of the applicant to the building up of the estate or to the welfare of the deceased or the family of the deceased.

246. The applicant's case has been that he cared for the deceased when she stayed with him on the Gold Coast to the extent that he was unable to work full-time. The applicant's evidence overstated the amount of time the deceased spent with him and furthermore overstated the problematic nature of the deceased's drinking habits. I find that the applicant undertook the functions of a caretaker when the deceased was not resident at the Port Merion property and when she was resident he undertook domestic tasks and did some driving for her. However these services were well and truly compensated by the rent free accommodation he enjoyed.

(l) Any benefits previously given by the deceased person to any applicant or to any beneficiary.

250. The deceased gave the applicant $10,000 out of the will of Walter Urquart. She may have done so at the urging of Walter Urquart Junior or at her own volition, in any event she was under no legal obligation to do so. It was a gift and no more.

(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 decease had assumed that responsibility

254. I accept that the notion of being maintained like that of dependence is not strictly financial but encompasses any condition whereby one person relies on another for the provision of his or her needs. I consider that the notion of being "partly maintained" is a rejection of a requirement of a relationship that is characterised by significant financial or emotional inequality, typically the financial dependent wife upon a husband or infant children upon parents. However, whilst rejecting these paradigmatic relationships caution needs to be exercised in order that any situation of co-operative living may be seen as one of partial maintenance. As the New South Wales cases make clear each situation needs to be examined carefully on its fact in order to avoid this. Here I am satisfied the applicant was not being maintained wholly or partly by the deceased. The applicant lived rent free in the deceased's property in exchange for performing the services of a caretaker. Throughout this period the applicant supported himself and paid his own bills.

257. Nothing that the deceased said or did can be taken as an assumption of the responsibility to maintain the applicant. The $10,000 given by the deceased to the applicant out of the estate of Walter Urquart was a one off gift signifying gratitude but no ongoing commitment to provided for or support. The deceased's question to the applicant "What will happen to you when I'm gone?" whilst signifying her concern for the applicant's well-being indicated that she had no intention of providing for his future and but merely contemplated how he intended to manage.

260. Finally the applicant's case has been based in the main on his claim to have assumed the role of carer for the deceased and not on her supporting him. However, a moral obligation to provide based on an applicant's being maintained by or being dependent upon the deceased as Mahoney JA pointed out in Churton v Christian & Ors [1988] NSWLR 241 at 244 is not one where the deceased owes the applicant a debt of moral gratitude rather it is the reverse.

(n) The liability of any other person to maintain the applicant

264. There is no-one under any liability to maintain the applicant. The applicant's family live in Malaysia and have apparently disowned him.

(o) The character and conduct of the applicant or any other person

268. The applicant seemed of good character although prone to exaggeration in his evidence. It is unfortunate that he has placed himself in a situation where at the age of 50 he possibly faces a precarious future. However it must be observed that it has been the applicant's own poor choices and in particular what can only be described his servile tendency to rely on the largesse of others that has left him so exposed.

(p) Any other matter the Court considers relevant

276. It follows from my consideration of the criteria set out in s.91(4)(e) to (p) that the plaintiff has failed to make out a moral duty owed by the deceased to him. He has failed to satisfy each of the relevant criteria in the relevant section. Accordingly, the application will be dismissed.

[1] See the Inheritance (Family Provision) Act 1938 (UK); see, also, Dickey, A., Family Provision After Death (1992), pp.2ff for a detailed historical survey of the enactment and development of family provision legislation.

[2] [1944] HCA 13; (1944) 69 CLR 69, 92.

[3] See s.5, Administration and Probate (Family Provision) Act 1962 (Vic).

[4] See Status of Children Act 1974 (Vic).

[6] [1999] 3 VR 803.

[7] (1956) 95 CLR 484, at 519, 527.

[8] [1979] HCA 2; (1979) 143 CLR 134 at 147.

[9] [1977] 2 VR 245, 359.

[10] And also adult daughters in Collicoat.

[13] (1994) 181 CLR 207.

[14] [1999] VSC 409 [Warren J 22 October 1999].

[15] [1999] VSC 431 [Beach J 12 November 1999].

[16] [2001] VSC 371 (Byrne J 28 September 2001].

[18] [2002] VSC 61.

[19] [1988] NSWLR 241

[20] (1987) 8 NSWLR 679 at 682

[21] (1988) NSWLR 489, at 491.

[22] See esp Parkinson v Burns; Estate of Turner [2001] NSWSC 9091, Macready 23 October 2000]

[23] Court of Appeal - 3 December 1991, unreported

[24] [at 681. See, also, Priestley JA in Churton at 252].

[25] Unreported judgment of Master McLaughlin, Supreme Court of New South Wales dated 9 April 2001.