Madden v Singvongsa [2003] VSCA 62

Court of Appeal (Vic)|2003-05-15|Before: WINNEKE, P., BATT, J.A. and WARREN, A.J.A.

Testators Family Maintenance - Question of error below - Question of interference by an appellate court - Advantage of trial judge - Appropriate provision.

I will invite Warren, A.J.A. to give the first judgment in this matter.

In her will the deceased provided in clause 5 as follows:

"I declare that I make no provision for my husband Viroun Singvongsa as I believe I have adequately provided for him during my lifetime and it is my wish that my children are the sole beneficiaries of my estate."

It was accepted at trial that no provision had been made for the respondent during the lifetime of the testatrix and that the statement in clause 5 of the will was false.[1]

The respondent brought a claim pursuant to s.91 of the Administration and Probate Act 1958 seeking an order that such provision for his proper maintenance and support be made out of the estate of the testatrix.

The testatrix left a net estate valued at the time of the trial at approximately $620,000. The court was informed on the appeal that the net value of the estate stood at approximately $650,000 before costs of this appeal.

The trial judge below after considering the affidavits and the evidence of the deponents of such affidavits, including the respondent, ordered that the testatrix did not make adequate provision for the respondent. His Honour ordered, in effect, that the estate be re-distributed by way of three equal shares, as to one share to the respondent and the remaining two shares to the children of the testatrix. The trial judge made other consequential orders in relation to the costs of the proceeding.

In his reasons for judgment the learned trial judge set out the salient historical facts relating to the testatrix and the respondent. It is largely unnecessary to revisit those facts. The key dispute at trial was the nature of the marriage between the testatrix and the respondent which had endured for a period of three years and was terminated by the death of the testatrix due to homicide. It was the case of the appellant that the marriage was one of convenience to enable the testatrix to obtain permanent residency in Australia. The respondent denied this allegation at trial and gave evidence that the relationship was a marriage of love and affection. The learned trial judge accepted this evidence. Ordinarily, an appellate court will not interfere with the finding of fact below. The onus in the present case is particularly heavy where the learned trial judge reached his findings based upon the evidence of witnesses, in particular, the respondent, whom his Honour had the advantage of seeing and hearing: see Lovell v. Lovell[2]. In this particular case the finding of fact as to the nature of the marriage between the testatrix and the respondent was critical.

The other critical aspect of the evidence was the extent of the contribution, if any, of the respondent to the living and household expenses and outgoings of the relationship. The learned trial judge made findings as to contributions made by the respondent. He also made findings that the respondent is a man in financial need. On the basis of these matters his Honour held that the testatrix at the date of her death had a moral obligation to make provision for the respondent as her husband in circumstances where the value of the estate was then thought to be approximately $400,000, that is, as at August 1999 and where the respondent had no assets and a modest income.

The appellant by way of appeal seeks to challenge the findings of the learned trial judge below. In written submissions on behalf of the appellant, an attempt was made to identify seven specific errors made by the learned trial judge as to the evidence. I have given close consideration to those submissions. It seems to me that even if the errors were made, and I am not necessarily so satisfied, such errors would not vitiate the discretion exercised by the trial judge. Essentially, the appellant submits that the learned trial judge erred in the exercise of the discretion which he was required to, and did, exercise because he failed to accord sufficient weight to the deficiencies of the marriage between the respondent and the testatrix. The appellant contended below, and in this Court, that the discretion would be appropriately exercised by making provision for the respondent to the extent of ten per cent of the estate of the testatrix. Such a "nominal" provision, it was submitted, reflects the realities of the relationship which existed between the testatrix and the respondent.

It is incumbent upon the appellant in the circumstances to show that the exercise of the discretion by the learned trial judge miscarried. The appellant must demonstrate that the discretion exercised below has been vitiated by specific error or was clearly wrong in failing to accord the deficiencies of the marriage sufficient weight.

In the course of argument the respondent did not dispute that to an extent the marriage was loveless but in so far as that was the position it was submitted to be a consequence of the attitudes of the testatrix towards the respondent. The way in which the testatrix treated or regarded the respondent cannot be relied upon to justify a reduction of the provision made below: see Re Buckland.[3] Although appellant's counsel sought to distinguish the remarks made by Adam, J. in this case, I am of the view that respondent's counsel was correct in his contention that they have an application to the facts of this case. Indeed, the learned trial judge below had before him the various circumstances that led to periods of separation between the testatrix and the respondent and in every instance the fact of separation emanated from decisions made by the testatrix and not the respondent. In my view it can be reasonably concluded that his Honour took all these matters into account.

Another factor I am satisfied that his Honour took into consideration were the competing calls on the bounty of the testatrix between two children starting out their lives compared with a man, well into his fifties, who was unemployed and had only dim prospects for the future.

For the appellant, attack was made on the quantum allocated by the trial judge to the respondent in the exercise of the discretion. In this respect it is apparent that as part of the exercise of the discretion the learned trial judge weighed up the competing calls on the bounty of the testatrix. Importantly, it is not a matter of this Court substituting its view or re-exercising the discretion unless miscarriage at an appropriate level is demonstrated: see Grey v. Harrison;[4] Singer v. Berghouse;[5] House v. R.;[6] Lovell v. Lovell.[7] It is, thus, of no significance that I, or other members of the Court, might have exercised the discretion in a different manner.

Further, in the course of argument an attack was made on behalf of the appellant upon alleged deficiencies in the reasons of the learned trial judge. The reasons were criticised for not setting out sufficiently the relevant considerations taken into account and the weight allocated to those considerations. I consider the criticisms are ill-founded. The reasons reflect appropriate and adequate consideration of necessary matters, including the requirements of s.91(4) of the Administration and Probate Act.

Having carefully reviewed the evidence below and the submissions of the appellant I am not satisfied that the discretion of the learned trial judge as to quantum miscarried. The approach applied by a trial judge in assessing the quantum of the provision to be made in favour of a plaintiff necessarily involved that which has been termed as an "instinctive synthesis": see Grey v. Harrison.[8] Often it is difficult to articulate the factors that contribute to such instinctive synthesis. Nevertheless, a trial judge will inevitably strive to achieve a just result derived from the application of the "instinctive synthesis". Ultimately, I conclude that the conclusion of the learned trial judge was perfectly reasonable and within the range of what was appropriate to the circumstances. In my view the appeal should be dismissed.

The remaining matter to be considered is the question of costs. If successful, the respondent sought orders that the costs of the appeal be paid out of the estate but that the incidence of those costs be confined to the share of the two children of the testatrix. It was conceded that the costs of the appellant in any event should be the usual order for trustee costs. Further, the respondent sought his costs on the usual solicitor client basis. It was submitted on behalf of the respondent that if the appeal was dismissed and the costs were ordered against the estate as a whole then the respondent would effectively pay one third of the costs. There was no suggestion that the two children of the testatrix had agitated for the appellant to institute the appeal. Indeed, there was no suggestion to contradict the assumption that the appellant instituted the appeal in the ordinary course of exercising the executor's duty to protect the estate. In the circumstances of this case it seems to me that, on balance, it would be unfair and unjust to apportion the full burden of the costs of the appeal against the share of the two children of the testatrix. For my part, therefore, I consider that if the appeal is to be dismissed then the usual orders should be made (that is, the costs and expenses of the appellant of and incidental to the appeal and the costs of the respondent of the appeal as between solicitor and client be paid out of the estate as a whole).

For the reasons given by Warren, A.J.A. I agree that the appeal should be dismissed. I also agree in her Honour's conclusion on the question of costs.

The Court orders that the costs and expenses of the appellant of and incidental to the appeal and the costs of the respondent of and incidental to the appeal as between solicitor and client be paid out of the estate as a whole.

The Court also orders that, pursuant to r.36.07 of Ch.1 of the Rules, paragraph 2(a) of the judgment given in this matter by Byrne, J. on 9 August 2002 be corrected by omitting from the words thereby substituted the expression "to my children".

[1] Para.3 of the reasons for judgment below.

[4] [1997] 2 V.R. 359, per Callaway JA at 363-364.

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

Parties