Macewan Shaw v Shaw [2003] VSC 318

Supreme Court of Victoria|2003-09-02|Before: DODDS-STREETON J.

TESTATOR'S FAMILY MAINTENANCE - Application by infant grandchildren - Principles to be applied - Moral duty - Necessity for need in applicant - Freedom of testation to prevail unless abused - Three stage test - Factors under Administration and Probate Act s.91(4)(e) - (p) relevant to each stage - No moral obligation to provide for grandchild by virtue of the relationship per se - Whether grandparent assumed the role of primary provider for applicants - Relevance of pattern of generosity where significant benefits provided primarily to testator's own child - Whether unconditional assurance by testator to fund grandchildren's future education - Relevance of testator's provision of residential property to his son - Size of estate - Defendant beneficiary's contribution to welfare of testator and size of the estate - No breach of moral duty demonstrated - No assumption of responsibility to provide - No unconditional assurances to fund education at fee paying school - No relevant need established - Testator's gift of residential property to applicants' parent likely to benefit applicants - Parents of applicants bear primary legal and moral responsibility to provide - followed.

1 In this proceeding, the infant plaintiffs, Morgan Dacre MacEwan Shaw and Gwilym Daniel MacEwan Shaw, by Shauna Alice MacEwan (their mother and litigation guardian) seek orders pursuant to Part IV of the Administration and Probate Act ("the Act") that provision for their proper maintenance and support be made out of the estate of their late grandfather, Neil William Shaw ("the deceased").

2 The deceased died on 17 August 2001. The deceased made his last will on 17 July 1996. Probate of the will was granted on 26 October 2001. The executor of the will and the defendant to this proceeding, is Mrs Katherine May Shaw, the widow of the deceased and the grandmother of the plaintiffs. The defendant is the sole beneficiary under the will.

3 The infant plaintiffs are the children of Steven Robert Shaw and Shauna Alice MacEwan. Steven Robert Shaw is the son of the deceased and the defendant. He lived in a de facto relationship with Shauna Alice MacEwan for approximately eight years (between April 1993 and January 2001). The first plaintiff (Morgan) was born on 17 February 1994 and is currently aged nine. The second plaintiff (Gwilym) was born on 5 December 1998 and is currently aged five. Throughout the course of the relationship, the family resided in a house situated at 31 Chestnut Street, Richmond, which the deceased originally owned but had, from as early as 1981, made available as a residence for Steven Shaw, his son. In May 1996 the deceased transferred the title of the Chestnut Street property to Steven Shaw by way of gift.

4 Steven Shaw was unemployed throughout the course of the de facto relationship. During that period, his sole income was a disability pension. Ms MacEwan had some intermittent paid work as an actress. She admitted at trial that she also received a sole parent's benefit for at least part of the duration of the de facto relationship. By November 2000 the relationship had broken down and the parties separated "under one roof". In January 2001 they formally separated. The infant plaintiffs and Ms MacEwan left the house at 31 Chestnut Street, Richmond to live in a nearby property also situated in Richmond. The deceased and the defendant paid $280 per week towards the rental of that alternative property for the period of one year.

5 The infant plaintiffs currently reside with their mother, Ms MacEwan, in rented accommodation. Until recently, the principal family income has been the mother's sole parent benefit, but she has now qualified and obtained employment as a teacher.

6 In August 2002 Ms MacEwan issued a proceeding against Steven Shaw pursuant to Part IX of the Property Law Act, 1958 (Vic) seeking 70% of the value of his property at 31 Chestnut Street, Richmond. The writ has not yet been served.

7 In the present case, the infant plaintiffs' claim is specifically related to, and quantified on the basis of, the total cost of their secondary education at Wesley College, an established fee-paying school in Melbourne. The estimated cost of the education is approximately $168,000.

8 Mr Scarfo, counsel for the plaintiffs, submitted that the deceased and Mrs Shaw assumed, to a substantial degree, the primary responsibility to provide for the children. A house was provided and renovated to accommodate the children, at the deceased's expense. Following the breakdown of their parents' relationship, the grandparents paid the rent for the children's accommodation for one year. The grandparents gave many generous gifts to the plaintiffs. The grandparents fulfilled the children's basic needs, providing a car (and subsequently a safer car), a telephone, a computer, a sewing machine, other household items, substantial amounts of clothing and appropriate toys, showing an intention to support and provide for the plaintiffs.

9 The plaintiffs contended that the deceased assumed the role of breadwinner because throughout the de facto relationship, the family income was limited to the disability pension of Steven Shaw and the mother's intermittent earnings from casual acting.

10 The plaintiffs also submit that deceased decided that the children should have a private secondary education. Wesley College was the deceased's choice. In December 1994, after Morgan's birth, the deceased organised and paid for an application on Morgan's behalf to Wesley College. It is contended that deceased made an unconditional promise or assurance to fund the children's private education. This gave rise to an expectation, which the deceased's will failed to satisfy.

11 It is contended that the deceased virtually assumed a father's role, providing a lifestyle for the children which their own parents could not provide. It is said that the estate is substantial, but the resources and capacities of the children's parents are modest. In all the circumstances, the plaintiffs submit that the deceased had a moral duty to provide for the children, which was breached.

12 Ms Sparke, counsel for the defendant, submitted that all gifts and benefactions were in substance given by both the deceased and his wife acting jointly. Gifts presented to the children did not exceed what is usual for caring grandparents. Many other gifts and benefits were conferred on the family unit, and although generous, were not exceptional.

13 The defendant submits that only unusually significant benefits provided by the deceased were the residential property and the payment of a year's rent for the accommodation of the children and Ms MacEwan. The property was a gift to the deceased's son and the rental payments were made in order to ensure that he retained possession of the property. Such gifts necessarily benefited the plaintiffs, but were not principally directed at them.

14 The defendant further contends that there was no assumption of an obligation to provide for the children as a substitute parent and no unconditional promise to fund their private secondary education.

15 Ms Sparke contended that "truly exceptional" circumstances are necessary in order to impose on grandparents a moral duty to provide for grandchildren.

16 She submitted that there were no such circumstances in the present case. Further, no need for education at a fee paying school was established. According to prevailing community standards, such education was a privilege, rather than a need.

17 Ms Sparke submitted that the deceased's gift of the residential property in Richmond, which is the subject of an application under Part IX of the Property Law Act, was likely to result in a material contribution to the plaintiffs' accommodation needs. She submitted that the application had not been prosecuted, in order to increase the chances of success in the present proceeding.

18 Ms Sparke further submitted that prevailing community standards would be transgressed if the generous acts of the deceased grandfather imposed a further testamentary obligation to fund private education. She contended that there was no moral duty to provide it. The fact that the estate was large was therefore irrelevant. There being no breach of any moral duty, there was no justification for interference with the deceased's freedom of testation. He was entitled to confer his estate on his deserving widow, who had greatly contributed to his accumulation of assets.

19 Part IV of the Administration and Probate Act 1958 (Vic) ("the Act") governs the Court's power to make provision for the maintenance and support of applicants from the estate of deceased persons.

20 Section 91 of the Act 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 deceased had responsibility to make provision.

(2) The Court must not make an order under sub-section (1) in favour of a person unless -

(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 -

(b) the operation of the provisions of Part I, Division 6; or

does not make adequate provision for the proper maintenance and support of the person.

(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 -

(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

(d) any other matter related to an application for an order under sub-section (1) -

(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;

(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."

21 The current provisions of Part IV of the Act, introduced by the Wills Act 1997, as amended by the Miscellaneous Acts (Omnibus No.1) Act 1998, came into operation on 20 July 1998. They introduced a substantially amended statutory scheme intended to widen the category of persons entitled to make application for "testator's family maintenance". Previously, eligible applicants were limited to widows, widowers and children. The Attorney-General's Second Reaching Speech (9 October 1997) referred to the need to amend provisions which were "quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased's estate from making a claim".

22 Although the current provisions are frequently referred to as testator's family maintenance provisions, eligible applicants are not limited to family members or to persons with any particular status or relationship to the deceased. Rather, by s.91(1) eligibility to apply depends upon a responsibility in the deceased to make provision for the proper maintenance and support of the applicant. In determining whether the deceased had such a responsibility and whether the terms of any will or rules of intestacy (or the combined application of the will and intestacy provisions) make adequate provision, the Court, by s.91(4), is required to have regard to a number of specific matters and to any other matters it considers relevant.

23 Under Part IV, in its current form, the question of eligibility overlaps with the substantive determination of the application.

24 A substantial body of precedent decided under the previous legislation indicated that the correct approach in the context of maintenance applications was to apply a two stage test. The first stage of the applicable test involved a determination of whether the deceased's will (or intestacy) was such as to provide adequate provision for the proper maintenance and support of the applicant.

25 In resolving that question, the Court was required to place itself in the testator's shoes and determine what testamentary dispositions ought to have been made by a just and wise testator in all the circumstances of the particular case.

26 In Bosch v Perpetual Trustee Co Ltd,[1] Lord Romer stated -

"Their Lordships agree 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 and father."[2]

27 In several cases, the concepts of moral duty or moral claim and the wise and just testator have been criticised, as constituting a judicial gloss without statutory justification. That criticism culminated in Singer v Berghouse [No. 2][3] where Mason CJ, Deane and McHugh JJ doubted whether the just and wise testator provided useful assistance in elucidating the statutory provisions.

28 Despite those observations of the High Court in Singer v Berghouse (No. 2), and their subsequent endorsement by the New South Wales Court of Appeal, Victorian authority has adhered to the tests of moral duty and the wise and just testator. In Collicoat v McMillan[4] Ormiston J declined to endorse the criticism of the Mason CJ, Deane and McHugh JJ observing that it was obiter dicta only. His Honour there observed that much of the criticism of the moral obligation misconceived its nature. In Ormiston J's view, the test did not require an applicant to demonstrate entitlement by reference to the merits of his character or conduct. Rather, it focused on the obligation of the testator to make such testamentary dispositions as were right and proper, according to accepted community standards, having made a wise and just assessment of the entitlements.

29 Ormiston J in Collicoat v McMillan also observed:

"the expression `moral duty' remains a simple and convenient way of referring to the obligation ... resting on 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 ... 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 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."[5]

30 In Grey v Harrison,[6] the Court of Appeal confirmed Ormiston J's reaffirmation of the wise and just testator. Callaway JA, with whom Tadgell and Charles JJA concurred, noted that -

"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. See and compare Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 46 per Sheller JA. It is the way in which the courts, for almost the whole of this century, have construed the legislation. As Ormiston J explained in Collicoat v McMillan (unreported, 30 October1995) at 63-76, it is in large measure exegetical of the `proper' in the phrase `proper maintenance and support'. 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 purposes of remedying such a breach."[7]

31 Callaway JA also observed that the doubt expressed in Singer v Berghouse (No. 2)[8] in relation to a just and wise testator and to moral duty was clearly obiter. Although it merited careful consideration he considered that, "the authorities so strongly favour the criterion of what a wise and just testator would consider his or her moral duty that we are not free to jettison it."[9]

32 Tadgell JA also expressly rejected the view that Victorian courts should follow the obiter dictum in Singer v Berghouse (No. 2).[10]

33 Callaway JA considered that the retention of the wise and just testator test was justified, particularly in Victoria "where there has been no legislative change of the kind that has occurred in New South Wales".[11] In that context, his Honour referred to the presence in the legislation since 1937 of the words "proper maintenance and support" and the fact that the legislature had amended Part IV against settled judicial construction of those words.

34 Callaway JA considered that the dictum in Singer v Berghouse (No. 2) might be a caveat against departure from the language of the statute, coupled with a recognition that the content of wisdom, justice and moral duty is not static, but may change over time.

35 His Honour observed that finally, the question is always what constitutes adequate provision for the plaintiff's proper maintenance and support and "duty is but an element that is to be taken into account in weighing all the considerations".[12]

36 Further, his Honour reiterated that the inroads made into the significant human right of freedom of testation by Part IV of the Act were justifiable only by reference to a breach of the moral duty. A breach of moral duty defined the legitimate extent of curial intervention.[13]

37 As Callaway JA referred to the absence of statutory amendment as a particular justification for adherence to settled law, the question arises whether the significant amendments introduced shortly after the decision in Grey v Harrison warrant a different approach.

38 In my opinion, the amendments to Part IV introduced by the Wills Act 1997 do not require or justify a different approach. The retention of the traditional words "proper maintenance and support", the express reference to the responsibility of the testator in the legislation and the acknowledgment in the Second Reading Speech that the remedial legislation was directed at facilitating applications by those who have "moral claims", reinforce rather than attenuate the application of the traditional concepts of moral duty and the wise and just testator.

39 That approach was confirmed by Warren J in Lee v Hearn[14] where her Honour observed:

"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."[15]

40 Similarly, Harper J in Schmidt v Watkins,[16] on considering the Second Reading Speech, concluded that the amendments effected by the Wills Act were seen by Parliament as "part of a continuum, rather than as a complete break from the unamended provisions of Part IV" and "not as creating a new class of claimant but merely as expanding the boundaries of the old."[17]

41 Harper J stressed that a breach of duty and an abuse of the freedom of testation are at the core of the court's jurisdiction in this context.

42 His Honour recognised a three-stage process in Part IV applications as a result of the amendments to the Act effected by the Wills Act 1997.

43 First, the Court must, as its initial focus of inquiry, decide whether or not the claimant falls within that class of persons for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support. This is a jurisdictional question, as the Court has no power to make an order in favour of an applicant who does not fall within that category.

44 Secondly, the Court must decide whether the claimant has been left without proper maintenance and support.

45 Thirdly, if the deceased has failed in the duty to make such provision, the Court has power to exercise its discretion to make an order granting such provision as would have been made by a wise and just testator.

46 At each stage of the three-stage process, the wise and just testator is a governing point of reference.

47 In Harper J's view, all twelve factors set out in s.91(4)(e) to (p) are relevant to each of three questions. That is, whether the deceased had a responsibility to provide for the claimant; whether the duty was breached, in that adequate provision for proper maintenance was not made; and thirdly, if a breach is established, the amount of the provision to be ordered.

48 Harper J also observed in Blair v Blair[18] that the legislation remains concerned with only the adequate provision of proper maintenance support. Adequate provision may go well beyond mere subsistence and may involve careful assessment of what is fair between competing claimants.[19] On the other hand, the legislation does not authorise a general curial redistribution of the deceased's property, according to notions of fairness.

49 In Pontifical Society for the Propogation of the Faith v Scales,[20] Dixon CJ observed that the notions of what is adequate or proper are relative. They necessarily involve consideration of the "nature, extent and character of the estate, the other demands upon it, and what the testator regarded as superior claims or preferable dispositions."[21]

50 Victorian authority has held that although need is a relative concept, it must be shown in order to establish a claim.[22] A moral claim alone will not suffice. In my opinion, that authority is unaffected by the amendments.

51 It is necessary to consider each factor set out in s.91(4).

"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 obligation or responsibilities of the deceased person to the applicant, any other applicant, and the beneficiary of the estate".

54 In the present case, it is convenient to consider the factors relevant to sub-paragraphs (e) and (f) together.

55 The plaintiffs' relationship to the deceased is that of grandchildren.

56 Under the previous provisions, a grandchild did not have standing to bring a Part IV application.

57 In Sherlock v Guest[23] Beach J recognised that under Part IV as amended, "there is no moral obligation upon a grandfather to make provision for the maintenance and support of his grandchildren simply by virtue of the existence of such a relationship. Such a moral obligation will rest upon the parents of a grandchild but not on the grandparents."[24]

58 Beach J acknowledged that although no moral obligation automatically arose by virtue of the relationship, "if... a grandchild can satisfy the criteria spelt out in s.91 of the Act, he or she may be entitled to an order, not because he is a grandchild per se, but because he or she satisfies the new criteria".[25]

59 In Sherlock v Guest, Beach J found that there was no evidence on which to conclude that it was arguable that the applicant grandchildren satisfied the statutory criteria.

60 Leahey v Trescowthick[26] concerned an application to extend time for making Part IV applications by adult grandchildren who had received many "extremely generous" gifts and benefits from their deceased grandfather during the latter's lifetime. The deceased in that case had a large estate. He had made some provision in his will for the applicant grandchildren, which they sought to increase. During the lives of the deceased and his wife (who had predeceased him) the grandparents had conferred interests in a family company on the grandchildren. They had made many generous contributions towards the education and other needs of their grandchildren.

61 Warren J, in determining whether to extend the time to apply for additional maintenance under Part IV of the Act, considered the grandchildren's prospects of ultimate success. She decided that the prospects of success were low, and that an extension should not be granted.

62 In that context, her Honour observed the grandparents "had no direct parental or grand-parental duty to provide for any of their grandchildren including each of the plaintiffs. The fact that the deceased and his wife during their lifetime made generous gifts towards some of the grandchildren, including the plaintiffs, and in particular made generous contributions towards the education of some grandchildren cannot, in my view, be construed or characterised as an obligation or responsibility on the part of the deceased to any of the [grandchildren]."[27]

63 Warren J clearly rejected the notion that a pattern of significant generosity by grandparents, including contributions to education, can convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

"The fact that the deceased and his wife during their lifetime made generous gifts towards some of the grandchildren, including the plaintiffs, and, in particular, made generous contributions towards the education of some of the grandchildren cannot in my view be construed or characterised as an obligation or responsibility on the part of the deceased to any of the plaintiffs."[28]

65 In Harris v Bennett and O'Brien,[29] McDonald J noted with apparent approval the above observations of Beach and Warren JJ.[30]

66 He nevertheless considered that a claim by an illegitimate infant granddaughter should not be struck out as frivolous and vexatious. The granddaughter was possibly known to her deceased grandfather. She was rejected by her father, the deceased's son, although financially maintained by him to some extent. She had certain physical and psychiatric problems. Various factors were noted by his Honour as relevant to her claim. The estate was large, valued at over $12million.[31]

67 McDonald J considered that in view of all the circumstances, the granddaughter's claim was not so untenable that it could not possibly succeed. However, he did not determine the claim. He endorsed the view that a grandchild, in the context of a Part IV application, cannot rely on the existence of a family relationship alone to establish a responsibility in the grandparent to provide for maintenance and support out of his estate.[32]

68 The analogous provisions in other states are very different from the current Victorian provisions. The New South Wales provisions include a grandchild in the definition of an "eligible person" if the grandchild was, at any particular time, wholly or partly dependent upon the deceased.

69 The relevant New South Wales authorities also recognise as fundamental a moral duty in the testator to provide, rather than endorsing a curial licence to rewrite a will because it would be "nice" or demonstrate familial generosity. The New South Wales decisions on the claims of grandchildren are therefore instructive in like applications under Part IV of the Act.

70 In Griffths v West,[33] Master McLaughlin rejected the claims of the plaintiffs, (who were young adults) to further provision from their deceased grandmother's estate. The plaintiffs were in modest circumstances. One of them was residing with, and dependent upon her mother, the deceased's daughter. The deceased had been in comfortable circumstances. Her daughter had resided with her for substantial periods and the grandchildren (together with the daughter's husband) had also resided with the deceased during that time.

71 The deceased was very generous in a financial and material sense towards the claimants, giving them some substantial monetary gifts, holidays and expensive entertainments.

72 McLaughlin M noted that the deceased was not only directly generous to the grandchildren, but had also given "assistance indirectly by helping their mother with expenses for the children, with meeting household bills and accounts, and with providing clothes for the children and assisting with school fees and other expenses for them".[34]

73 Further, the deceased had provided a self-contained home for her daughter in her own residence, which the grandchildren shared. She then gifted a house to her daughter, which the grandchildren similarly shared.

74 Nevertheless, at all relevant times, the grandchildren lived with their own mother. The mother (or her spouse) was the breadwinner on whom they were dependent for shelter, accommodation, food and clothing, although the grandmother assisted that breadwinner.

75 In Pearson v Jones,[35] McLaughlin M dismissed the claims of two adult grandchildren, one of whom suffered serious chronic psychiatric illness, was in "very poor financial and material circumstances", had a lifestyle of "extreme frugality" and was unemployable.

76 In that case, the deceased grandmother and her spouse had provided a residence joined to their own for their son, the plaintiff's father. The grandchildren lived in the residence provided to their parents by the grandparents from birth to early adulthood.

"The deceased, with her husband during his lifetime, gave practical and financial assistance to their son and daughter-in-law and to their two grandchildren especially by way of purchasing school clothes, providing meals on occasion, regularly taking the grandchildren to their country seat ... ".[36]

78 The plaintiffs' parents divorced. That upset the deceased, whose attitude to her grandchildren changed after the death of her son, the plaintiffs' father.

79 McLaughlin M considered that dependency or partial dependency was not established. Although the deceased provided the residence "the plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the plaintiffs, the mere fact that gifts or benefits were given, either occasionally, or even on a regular basis, by the grandparents, is not sufficient to establish that the plaintiffs were partly dependent upon their grandparents."[37]

80 Griffiths v West and Pearson v Jones indicate that a testator's provision of benefits to his or her own child, which a grandchild shares, does not, without more, give rise to a direct dependency or a responsibility to provide.

81 In Sayer v Sayer[38] the New South Wales Court of Appeal reduced an order made by Bryson J at first instance in favour of the deceased.[39] The plaintiff granddaughter was the child of the deceased's mentally ill daughter, who lived "a rootless and disordered life".[40] The deceased bought his daughter a house and the granddaughter lived with, and was cared for, by her grandparents. The child's mother was herself dependent and "the grandparents bore the real parental responsibility".[41] The plaintiff was dependent on the deceased for her housing and all other needs.

82 The plaintiff's grandmother died and the deceased remarried. The plaintiff thereafter resided with other relatives, but the deceased continued to support and assist her throughout her tertiary education.

83 Bryson J awarded the granddaughter, who was a student, a significant sum, although it necessitated the sale of the principal asset of the estate (a residence devised to the deceased's widow). He considered that the granddaughter's circumstances were "quite unusual", due to her mother's disabilities. Her grandfather had occupied the acknowledged position of a parent, in a number of ways, formal and informal.[42] As such, "He made every important arrangement in life which a parent would make".[43]

84 On appeal, the Court of Appeal took the view that the claims of the grandfather's widow were paramount. Although the marriage was for only six years, it was a good marriage and the widow had borne the care of the deceased during his illness.

85 In relation to the granddaughter's claim, Sheller JA (with whom Davies AJA agreed) did not consider her circumstances to be such that they could justify the reduction of the widow's interest. Hodgson JA thought the trial judge's award was too high.

86 In Tsivinsky v Tsivinsky,[44] the applicant granddaughter resided with her grandparents, initially at intervals during the illness of her mother (their daughter) and (on her mother's early death) permanently, until the grandmother herself was incapacitated by illness.

87 The Court of Appeal considered that the granddaughter was an eligible person.

"Even if grandchildren are not `generally regarded as natural objects of testamentary recognition by a deceased' testator, so that additional `factors' must be shown in each case to lift them into the class of persons for whom disposition `ought' to be made, there were `factors' in this case which made the application by [the granddaughter] warranted and thus authorised the making of an order under the Act. Those factors included the loss of her mother at an early age, her residence with the deceased in her home both before and after the mother's death; the acceptance by the deceased, particularly after the death of her daughter, of a position of surrogate mother to [the plaintiff] and the continuance of that relationship until a stroke rendered the deceased unable to continue in that role. During the most important formative years of her childhood, the deceased's granddaughter was wholly dependent upon her. At the time of the deceased's death, [the applicant] was fifteen years of age. No provision was made in the deceased's will for her proper maintenance, education and advancement, although she would obviously continue to have needs for her schooling and later education. This was therefore no ordinary or typical grandchild. Nor was the relationship to the deceased one with only short and interrupted periods of dependency. It was a case of substantial dependency in the past and foreseeable needs in the future. Hodgson J's determination that he was satisfied that there were factors warranting the making of the application on the part of [the applicant] was clearly correct."[45]

89 In the Estate of Puckridge[46], a South Australian case, the Court, pursuant to legislation referring to proper provision for "maintenance, education and advancement in life" ordered further provision for adult grandchildren. The estate was very large and the principal beneficiary was the testator's second wife, whom he had married only a year before his death. In contrast to the uniformly expressed view of judges of this Court in relation to the present legislation, King CJ recognised that, under the South Australian legislation, "a blood relationship may of itself give rise to a moral claim under the Act".[47]

90 In Kitson v Franks[48] a decision of the Supreme Court of Western Australia, Heenan J ordered provision for young adult grandchildren where the deceased grandmother's estate was sufficient and the needs of the grandmother's own children were relatively modest. In that case, the deceased had no surviving spouse and the grandchildren's father (the deceased's son) had predeceased the testator. The Court of Appeal upheld the beneficiary's appeal in relation to one of the applicants.[49]

91 The New Zealand case of Re Horton[50] involved a contest between the deceased testator's children by his second marriage and his grandchildren by a son of his first marriage. The son of the first marriage had been largely rejected by the testator following his second marriage. The testator had done little for the son, who had not enjoyed material success in life.

92 The testator's son was in poor financial circumstances. He and his family lived in rented accommodation. He received only a small legacy, with a substitution to his teenage children should he predecease them.

93 The testator's estate was substantial enough to permit provision for both the plaintiff grandchildren and for the second family.

94 The Court of Appeal apparently accepted the trial judge's view that "the claim of grandchildren whose parents are alive is ordinarily not a strong one".[51] It considered the circumstances of the case to be "somewhat special". The grandchildren's father had been neglected by the testator. He had received only a small legacy. His financial position and history made it "more than doubtful" that he would provide substantially for his children's future. Their Honours observed that:

"the need (if any) of grandchildren for provision must be measured in the light, inter alia, of the ability of their own parents to provide for them. There is no suggestion that these grandchildren can expect any significant family provision except from their grandfather's estate".[52]

95 It should be noted that the relevant New Zealand legislation expressly directed the Court, in considering any application, to have regard to all the circumstances of the case and to any provision made by the deceased or the Court "in favour of either or both of the grandchild's parents". In contrast to Re Horton, in the present case, the deceased has been exceptionally generous and supportive to his son, the plaintiff's father.

Was the deceased a primary provider for the plaintiffs?

96 It is necessary, in the present case, to assess the validity of the plaintiffs' claim that the deceased occupied the role of their parent, breadwinner, and primary provider, due to the incapacity of the natural parents.

98 Ms MacEwan, the mother and litigation guardian of the infant plaintiffs, gave evidence in support of the claim.

99 She asserted that the deceased regularly conferred on the plaintiffs gifts which exceeded the ordinary benefactions typical of a caring grandparent.

100 Rather than acting as an ordinary grandfather, she asserted that the deceased virtually stepped into the shoes of breadwinner or paternal guardian, in response to recognising the incapacity of the children's parents to provide for them. Ms MacEwan at first contended that the parents' only income was Steven Shaw's disability pension and her intermittent earnings from casual acting. She admitted in cross-examination that for two years, at least, she also dishonestly claimed a sole parent's pension. The household income was thus, for some periods at least, significantly higher than Ms MacEwan originally claimed.

101 In her affidavits, Ms MacEwan described the deceased as a "guardian angel" and a role model, who had an exceptionally close relationship with the children, bought them many thoughtful and expensive gifts, supplied a safe family vehicle with their benefit in mind and was particularly intimate with the elder child, Morgan.

102 In essence, she deposed that the deceased assumed the responsibility to clothe the children, provided cash gifts for the family unit, supplied the house in which they lived and acted generally as the provider.

103 She asserted that in addition to gifting the residence at Chestnut Street, Richmond, the deceased funded renovations in order to render it suitable to accommodate the children.

104 She stressed that the deceased and the infant plaintiffs had very frequent contact, by way of visits and telephone conversations. The deceased also occupied a special place in the emotional life of the infants, contributing greatly to their stability.

105 Further, she stated that from the outset, the deceased expressed a clear assurance that the grandparents would fund the children's education at a fee paying school. He gave an absolute undertaking to finance the education, unqualified by any conditions or reservations. The deceased selected the school (Wesley College) and organised and paid for an application on behalf of Morgan.

106 She also stated that the deceased assumed responsibility for 12 months' of rental payments for herself and the children when the de facto couple separated in January 2000.

107 Ms MacEwan contended in her affidavit that the grandparents bought a Toyota car for Morgan's benefit. She conceded in cross-examination that it was bought before Morgan was born. She paid half of the price, and the arrangement was for Steven Shaw to pay the other half. His parents paid Steven Shaw's half share. The Toyota car was ultimately registered and insured in Steven Shaw's name. At a later date, the grandparents exchanged their Volvo vehicle for the Toyota, using the Toyota as a trade-in to upgrade their own vehicle. The Volvo was of similar age to the Toyota, but better maintained and considered safer. The grandparents assisted with the maintenance of the Volvo. Mrs Shaw, rather than the testator, gave the family some tyre vouchers.

108 Although Ms MacEwan at first contended that various household gifts were given to the children, she conceded in cross-examination that the cordless telephone was a birthday gift to Steven, a pressure cooker was given to herself and Steven, a sewing machine was a gift to herself, the video was a gift to Steven or to the family as a whole, the picnic set was a gift to the family unit, and the Volvo motor car and tyre vouchers were given to the family.

109 She agreed that most of the gifts were presented to the family, rather than specifically to Morgan or Gwilym. The children also received personal gifts, which were mostly Christmas or birthday gifts.

110 The grandparents made other appropriate gifts on the birth of the children, such as laundry services and a playpen.

111 Ms MacEwan asserted that the grandparents made a number of cash gifts. Mrs Shaw denied that the deceased made any cash gifts to the children or to their parents. According to her evidence, which I accept, the only cash gift was a gift of $125 which she (rather than the deceased) gave to Steven at Christmas, together with a like amount to her other children.

112 The grandparents gave the children gifts of clothes, shoes, and winter clothing. Ms MacEwan claimed that the grandparents were almost wholly responsible for clothing the children. Mrs Shaw denied that the grandparents provided the children's basic clothing. She stated that she provided only extra or special items and hand-knitted garments. Ms MacEwan ultimately conceded that it was her role to buy everyday clothes. I accept Mrs Shaw's evidence on this issue.

113 Ms MacEwan described gifts of books and educational toys by the deceased to the children. I accept that they were selected and presented by Mrs Shaw, rather than by the deceased.

114 Ms MacEwan asserted that the deceased funded the children's chickenpox vaccinations. I accept Mrs Shaw's evidence that the vaccinations were arranged at her initiative, (which the deceased supported) and that Mrs Shaw paid for them after his death.

115 The deceased provided his property at 31 Chestnut Street, Richmond as a residence for his son, Steven Shaw, as early as 1981. Steven paid rent for the accommodation. Renovations were carried out by Steven, but paid for by the deceased and Mrs Shaw.

116 Mrs Shaw testified that Steven continued to pay rent until the house was transferred to him in May 1996. Ms MacEwan disputed this. She contended that she "did not see" Steven pay rent after he had met her.

117 Ms MacEwan's evidence was that rent-free accommodation, (culminating in the transfer of title), and the subsequent renovations (also paid for by the deceased) were provided specifically for the plaintiffs.

118 According to Mrs Shaw, the Chestnut Street property was always intended as a gift for Steven. She stated that she and the deceased allocated resources equitably to assist each of their three sons to acquire a residence and a car. She denied that the transfer of the house to Steven was effected in order to secure accommodation for the grandchildren. She also denied that the major renovation was funded specifically to accommodate Morgan.

119 The transfer of title was not essential in order to accommodate the children. Similarly, although the renovation "freed up" a room for Morgan, I accept Mrs Shaw's evidence that the renovations were funded principally in order to assist the son, although the general benefits to his family unit were also intended.

120 The Chestnut Street property is the subject of an application under Part IX of the Property Law Act against Steven Shaw issued by Ms MacEwan in August 2002. The writ has not as yet been served on Steven Shaw. Ms MacEwan conceded that but for the current proceeding she would have vigorously pursued the Property Law Act application. Although Ms MacEwan denied it, I consider that she has not pursued the Property Law Act proceedings in order to maximise the plaintiffs' position in this proceeding.

121 Ms MacEwan asserted that the deceased made an unconditional assurance that the grandparents would fund a private secondary school education for the plaintiffs.

122 She stated there was a family conversation soon after Morgan's birth in which the deceased said he would like the grandchildren to have a private education at Wesley College, which he and Mrs Shaw would fund. She conceded that the discussion included a recognition that the payment of school fees would depend on how many grandchildren there ultimately were. She denied, however, that the grandparents stated that funding would be dependent on their health, finances and changing circumstances and that they would make only a 50% contribution.

123 Ms MacEwan's assertion that the grandparents organised and paid for Morgan's application to Wesley College was undisputed. She conceded that no form was filled in for Gwilym and that his education was never discussed, although the family unit was at that stage intact.

124 Ms MacEwan claimed that she and the grandparents had a subsequent discussion about private education for the children at the time when Morgan "stayed down" for a year. She testified that they discussed the necessity to change the Wesley College application form, and the possible effect on enrolment dates at Wesley College. She conceded that neither she nor the grandparents took any steps to change the Wesley College application form.

125 Mrs Shaw's evidence was that the only conversation about a private school education occurred in the hospital very soon after Morgan's birth. She stated that she and the deceased did not give an absolute assurance, but expressed an aspiration or preference, qualified by reference to the number of future grandchildren and the grandparents' future circumstances and capacities.

126 According to Mrs Shaw, there was never any further conversation with Ms MacEwan about private education and Gwilym was never the subject of such a discussion.

127 Regrettably I am unable to accept Ms MacEwan's evidence about the alleged further conversation, and the unconditional nature of assurances of financial support for education at a fee paying school.

128 Ms MacEwan conceded at various points that her evidence on affidavit was not accurate or wholly truthful. She conceded that she had exaggerated certain matters, such as the frequency of contact between the children and their grandparents and the nature of various gifts.

129 Further, she acknowledged that she had dishonestly misrepresented herself to the relevant authorities as a sole parent for at least some years of the relationship, in order to claim a sole parent's benefit to which she was not entitled.

130 While such measures were explicable by her difficult financial circumstances, they do not inspire confidence in Ms MacEwan's truthfulness. Where there is a conflict, I prefer the evidence of Mrs Shaw, who presented as a truthful and consistent witness.

131 The plaintiffs sought to rely on certain computer notes which, according to Mrs Shaw, were made by the deceased between 8 November 2000 and 15 February 2001, following the breakdown of the de facto relationship.

132 The plaintiffs asserted that the Court was entitled to accept them pursuant to s.94(c) of the Act as

"evidence of the deceased person's reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant whether or not the evidence is in writing".

133 I am not persuaded that the notes come within the ambit of s.94(c) of the Act. The deceased's will was already executed at the date of making the computer notes. The notes do not appear to relate to any proposed testamentary dispositions, but to funding during the lives of the grandparents. The sub-section is, in terms, question-begging in the present context, as it assumes that proper provision has not been made for the applicant. That is the very issue for determination in this proceeding.

134 Further, the computer notes are not, in my opinion, admissible as an admission by a deceased person against interest. The notes do not contain any admission of liability by the deceased.

135 However, the computer notes appear to be admissible pursuant to s.55(1)(a) of the Evidence Act.

136 The computer notes indicate that the grandparents privately, at least, had previously entertained the possibility of funding a private education for the children. They also indicate that the deceased did not acknowledge any legal or moral obligation to do so. The computer notes do not, in my view, disprove Mrs Shaw's account of the expression and terms of that intention.

137 On the contrary, the notes indicate that the deceased considered that the grandparents were in no sense absolutely committed to such funding, but were entitled to alter their plans according to changing circumstances. The deceased apparently concluded that a private education should not now be funded for the plaintiffs in any event, largely due to his perception that Ms MacEwan, their mother, was seeking cash or property settlements which would, apparently, be funded from Shaw family assets.

138 The notes evidence the deceased's disapproval of Ms MacEwan and his anxiety about the cost of funding her potential claims. They evidence a view that the children's ultimate inheritance or benefits from Shaw family assets should be adjusted to reflect the cost of Ms MacEwan's claims, and should be in a form which Ms MacEwan could not "siphon off".

139 The notes must be approached with caution. They are obviously an evolving series of informal records. They are not comprehensive, do not define terms, do not purport to set out all relevant circumstances and include unexplained references. Further, the notes were written whilst the deceased was seriously ill.

140 Viewed cautiously, the notes indicate the deceased's anxiety about the cost and personal consequences of the separation of the plaintiffs' parents. He referred to the rental subsidy and to possible necessary financial measures, such as mortgaging assets. He noted "certainly there will be no further payments to MacEwan or regrettably to the children for their education. Also any inheritance program that includes the grandchildren will be adjusted downwards as far as they are concerned. Further, checks made of possible income streams and reinvestment programs show that paying out MacEwan hinders reinvestment programs. ... we will assist the kids with overcoming serious setbacks such as medical problems but their private schooling has gone."

141 The notes indicate that the deceased assumed that the plaintiffs would ultimately receive a fair share of benefits from Shaw family assets. However, he evidently viewed a private education as inappropriate, because, inter alia, the potential cost of satisfying Ms MacEwan's claims must be taken into account in adjusting the relative entitlement of that "branch" of the family. The deceased noted "If there is a disaster with the children where they need say expensive medical treatment we can help but there will be no future private schooling for them."

142 When it was proposed that Morgan should repeat a year at school, Steven Shaw and the grandparents did not wish him to stay back. However, Ms MacEwan overrode their wishes. I am satisfied that Ms MacEwan exaggerated the role played in educational decisions by the grandparents. She conceded that ultimately the plaintiffs' parents decided educational issues.

143 The grandparents moved to Sassafras in 1994 when Morgan was six or seven months old. Ms MacEwan described frequent visits and contact between the children and the grandparents until the breakdown of the de facto relationship.

144 She agreed the visits were made as a family unit on family occasions, when other family members attended. She initially stated that they visited twice a month, or at least every three weeks. Subsequently, she conceded that such frequency was an ideal, rather than what actually occurred.

145 Ms MacEwan asserted that she stayed overnight at Sassafras twice when Morgan was one year old. Mrs Shaw denied that the grandparents received visits twice a month or every three weeks. She stated that visits were limited to birthdays and special family occasions. She denied that Ms MacEwan ever stayed at the grandparents' home. I accept Mrs Shaw's evidence.

146 Ms MacEwan asserted in her affidavit that on visits to Sassafras, the deceased and Morgan took walks together, giving an impression of particular intimacy and exclusivity. In cross-examination, she conceded that such walks included all family members. I am satisfied that she exaggerated the exclusivity and particularity of the relationship.

147 In her affidavit, she described the deceased as a guardian angel and role model to the children. She stressed that the children felt secure due to his assistance, but agreed in cross-examination that she had exaggerated her descriptions.

No assumption of parental responsibility to provide

148 I am satisfied that there was very little contact and no frequent expressions of concern, letters or communication by the children to their grandfather during his final serious illness.

149 However, such absence of contact was not attributable to the children, but was controlled by the adult or adults who had charge of them.

150 Ms MacEwan testified that contact between the children and their grandparents became complicated and difficult, due to the breakdown of her own relationship with the father and the grandparents.

151 I am satisfied that despite the ultimately diminished contact due to the stresses of relationship breakdown, geographical distance and serious illness, both grandparents acknowledged the children as valued family members. They showed the children many attentions and much affection, which the children doubtless valued and enjoyed. The relationship was good but in no way atypical.

152 I am also satisfied that although the grandparents jointly were generous to the grandchildren, their particular gifts to the children did not exceed the normal nature and extent of gifts typically given by attentive and affectionate grandparents. Further, in some instances, gifts initially asserted by Ms MacEwan to be from the deceased were in fact instigated by the children's grandmother.

153 A number of gifts initially asserted by Ms MacEwan to be for, or principally directed at, the children were, on analysis, gifts and benefactions to the deceased's son, Steven Shaw.

154 There is no doubt that the deceased and Mrs Shaw were generous and liberal parents who assisted, or allocated assistance to, all of their children.

155 The deceased and his wife paid Steven's half share of a car prior to the children's birth. Mrs Shaw gave Steven a modest cash gift at Christmas. The deceased, with the concurrence of his wife, made available the Chestnut Street house to Steven to reside in, as long ago as 1981. The deceased paid for many renovations to the property both before and after the transfer of the property.

156 When the parents' de facto relationship broke down, the grandparents paid $280 rent towards alternative accommodation for Ms MacEwan and the children. I am satisfied that this was primarily motivated by the desire to avert the threat that Steven Shaw might otherwise be obliged to vacate the Chestnut Street property due to the potential claims of Ms MacEwan.

157 In the final analysis, the only unusual acts of generosity by the deceased were the gift of the house at Chestnut Street, its renovation and the payment of one year's rent. Those benefactions were resolved on jointly by both grandparents (not the deceased alone) and were principally directed at the protection and benefit of their son, the children's father.

158 The provision of the house, and some renovations antedated Steven's relationship with Ms MacEwan and the birth of his children. I accept Mrs Shaw's evidence that the house was always intended for Steven. The formal gift of the house may have been accelerated by, and the subsequent character of benefits may have taken into account, his new status as a father. However, it is not possible to conclude that the grandparents assumed the parents' responsibility of maintenance of the grandchildren, and acted as substitute breadwinners and providers.

159 Inevitably, the plaintiffs and their mother participated in any benefits conferred on their father and partner, but in the character of associates or dependants of the principal beneficiary, rather than as acknowledged dependants of the deceased and his wife.

160 In the circumstances, I am satisfied that the deceased never at any stage assumed a father's role or a parental obligation to provide for the plaintiffs. Further, I am satisfied that the deceased did not make an unconditional assurance that he, or the grandparents, would fund the plaintiffs' secondary education at Wesley College.

161 Sub-paragraphs 91(4)(f) and (g) also overlap to a degree in this case, and are considered together. They provide -

"(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."

162 According to the most recent estimate of value, the assets of the deceased's estate have a gross value of $2,039,243.10.

163 The defendant is the sole beneficiary under the will.

164 The deceased married the defendant on 12 May 1956. They had three children, Steven, the father of the plaintiffs, born in 1960; Warren, born in 1962; and Jonathan, born in 1968.

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