Marshall v Spillane [2001] VSC 371

5. The proceeding before the Court is an application by Donald Brian Marshall, a brother of the deceased, for further provision pursuant to Part IV of the Administration and Probate Act 1958.

8. The deceased was the eldest child of Jane Ann Marshall and her husband who died in 1966 and 1944 respectively. The Marshalls had seven children of whom only Walter, Frank and Donald survived their eldest sister, Louise. Donald, the youngest of the Marshall family, was 66 years of age at the date of her death.

11. The estate of the deceased comprised two parcels of land in Beechmont in the State of Queensland which were sold for a net $98,301, and personalty totalling some $41,200. After deduction of expenses, not including those connected with this litigation, the estate stands at $134,548.80. I was told by counsel that the costs of this litigation were estimated to be about $12,000 to $15,000 for the administrators (on an indemnity basis) and about $12,000 to $13,000 for the plaintiff on a solicitor and client basis.

14. Following its amendment in 1997, Part IV of the Administration and Probate Act permits the Court to make an order for provision in favour of any person for whom the deceased "had responsibility to make provision"[1]. By s. 91(3) the Court is prohibited from making such an order unless it is of opinion that the operation of the statutory provisions for distribution upon intestacy fail to make "adequate provision for the proper maintenance and support" of the applicant. By s. 91(4) the Court in determining these matters, as well as the amount of the provision, if any, to be made, must have regard to eleven specified matters and to a twelfth - "any other matter the Court considers relevant".

17. The case for the plaintiff, Donald, was that there existed between him and the deceased a relationship akin to mother and son and that this, in the circumstances, gave rise to a responsibility on her part to make provision for him.

20. The concept of responsibility to make testamentary provision is a new one in this legislation. Before the 1997 amendment, Part IV listed the persons who might seek provision, not by such a concept, but by family relationship to the deceased - widow, widower or child. The power of the Court to grant relief to such a relative of the deceased depended upon a conclusion that the operation of the will or the statutory distribution provisions upon intestacy was "such as not to make adequate provision for the proper maintenance and support of" the claimant. For nearly a century legislation in these terms has been understood by judges to involve a jurisdictional enquiry as to what in the circumstances would have been proper provision, if any, for the applicant relative and as to whether the provision passing under the will or upon intestacy is adequate and an exercise of discretion as to further provision to be made.[2] This jurisdictional enquiry involves a value judgment by the Court, in the light of current standards, as to the existence and extent of the obligation of the deceased to make provision for the spouse or child as the case may be. This obligation, if it exists, arises as a matter of morality or humanity for there is no legal obligation upon a person to make a will or to make a testamentary gift to any person. Salmond J in a classic statement in New Zealand in 1922 put it this way:

"The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision 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 relevant circumstances. If it is manifest that the testator has, whether consciously or inadvertently, failed to perform this duty, it is the right and duty of the Court to perform it for him by making such alterations in his testamentary dispositions as may be adequate, but no more than adequate, for that purpose."[3]

24. I turn to the first question described in s. 91, whether Donald is a person for whom the deceased had a responsibility to make provision. The evidence shows that when Donald was born on 9 July 1932 there were five older brothers and sisters living. Louise, aged about 21 years, Walter, James, Frank, aged 12 years and Sydney, aged 9 years. With their parents the six children lived in a house at 52 Fontein Street, Tottenham.

27. Louise married Alfred Whittington on 23 December 1933 when Donald was 17 months old and they established their own home nearby at 8 Dempster Street, Tottenham. This property was purchased in the name of her husband. Donald's father died in 1944 when he was about 12 years of age and his mother lived on at Fontein Street until her death in 1966 when he was about 34 years. Donald himself lived there until some time after his own marriage to Audrey Marshall in 1955 when he was about 23 years old.

30. Donald says that, although he lived in his early years at Fontein Street with his father and mother, and later with his mother, together with his older brothers, it was his sister, Louise, who was his main carer. He said by way of explanation that his mother was busy caring for his teenage brothers. He described how Louise and her husband, who had no children of their own, cared for him during his childhood years as if he were their son.

33. Following their marriage in 1955 Donald and his wife lived for a while in Fontein Street. After their first child, Nerida, was born they moved out and finally established a home in Avondale Heights where they reared four children who are now grown up with their own families. I was told and I accept that Louise and her husband treated these children as their own grandchildren and they responded accordingly.

36. In 1960 Louise purchased two parcels of land at Beechmont on the Gold Coast in Queensland. It appears that one lot was purchased for £575 cash and the other for £600 on terms. The instalments under the terms contract were duly paid and, at the date of her death, the property stood in her name. The source of the funds for the purchases is obscure because Louise had no paid employment during her marriage. It is, however, clear that she paid the instalments herself and treated the land as her own property, taking steps to exclude her husband from knowledge of it.

39. In the 1990s, Louise turned 80 and became frail. In 1994 she suffered a fall and from then, apart from a very brief period, she lived in a nursing home. In 1998 her mental state had deteriorated to the point that an administrator was appointed of her estate under the Guardianship and Administration Board Act 1986. Her husband continued to live at the family home at Dempster Street, Tottenham until his death in April 1999.

42. Under s.91(4) I am obliged, for the purpose of determining whether Louise had a responsibility to make provision for Donald, to have regard to eleven matters. I shall briefly refer to each as it affects my inquiry.

45. The family or other relationship between Donald and Louise was as I have described it. She considered him her most important relative, even allowing for her husband. Particularly in her later years before 1994, he would perform household tasks and do shopping for her. When she was in the nursing home he and his family regularly visited her and took her husband to visit her. He, generally, provided comfort and support for her. He and his wife in 1994 postponed their planned move to the country to be close to his sister. He acted towards her as a dutiful son and she towards him as a loving mother over the whole period of his life.

48. The obligations and responsibilities of Louise for Donald are difficult to identify. She certainly had no legal or financial obligations or responsibilities for him. But I do not think, in the context of this matter, that these are so constrained. She had a moral responsibility towards him as might a parent, to acknowledge their mutual relationship in a practical way. This may in the appropriate case involve her giving serious consideration to making a testamentary bequest in his favour. Such a responsibility is acknowledged in the distribution regime upon intestacy which is set out in s. 52. As Smith J observed in Re Wren, deceased[4] this regime is "regarded by the legislature as being, in the generality of cases, the fairest and most reasonable".

51. So, too, did Louise have a heavy obligation and responsibility towards her husband of 65 years. Such an obligation and responsibility exists notwithstanding that circumstances, and perhaps their own inclinations, had in later decades driven them somewhat apart.

54. The estate is a modest one. It amounts to some $130,000 subject to the cost of this litigation.

57. The financial resources and needs of Donald at the date of his sister's death can be shortly stated. He and his wife had their home in Avondale Heights whose value is not known to me. He or they own a truck worth about $8,000. At the date of his sister's death he lived with his wife, both being dependent upon the age pension. He was then 66 years and his state of health unknown. Since her death he has suffered from a heart condition and had a triple bypass operation in July 1999. His wife also is presently in poor health and about to undergo substantial surgery.

60. The only beneficiary of the estate of Louise was her husband Alfred. He was elderly at the date of her death. Little is known of his financial circumstances other than that he owned his own home. Perhaps he too received the age pension.

63. There is evidence of small gifts made during her life by Louise to Donald and members of his family. The matters referred to in s. 94(4)(k), (l), (m), (n) and (o), other than I have already mentioned, are not relevant. It was put under paragraph (p) that I should have regard to the fact that she chose not to make a will. I doubt whether this is a matter of significance in this case.

66. I should add for completeness that there was some evidence of the relationship between Louise and members of her husband's family. To my mind this is not relevant otherwise than as offering an explanation for her evident affection for Donald and her preferment of him even over her husband.

69. I conclude from all of this that this is a case where the plaintiff has discharged the burden imposed upon him of showing that his sister Louise had a responsibility to make provision for him.

72. The second question is whether the distribution of her estate failed to make adequate provision for the proper maintenance and support of her brother. At one level the answer to this question is obvious. Since no provision at all was made, it must follow that no adequate provision was made.

75. It may be, however, that such a response is inadequate given the provenance of the terminology in s. 91(3) which has been the subject of extensive judicial analysis over nearly a century. These words as they appeared in the pre-1997 legislation, required the Court to ascertain what was a proper provision for the claimant in all the circumstances and then to compare this with the actual provision made. Where the Court concluded that the proper provision was, in the circumstances, no provision at all, a totally disinherited claimant would fail at this level.

78. Treating Donald as the equivalent of a son of the deceased, I respectfully agree with McDonald J when he said in Allan v Allan[5] that in s. 91(4) no distinction is made between a male claimant and a female claimant. The fact that Donald is an adult male no longer puts him in a special class with particular difficulties because he is prima facie able to maintain and support himself. The question I must consider, in the circumstances of this case having regard to contemporary standards, is whether a nil benefit conferred upon him under the intestacy regime is an adequate provision for his proper maintenance and support. I think not. In the present circumstances, where the needs of the competing beneficiary are not great and the relationship of the claimant is as I have found it, some provision ought to have been made in his favour in order to satisfy the obligation which lay upon Louise to acknowledge his claims upon her.

81. I come finally to the amount of provision which ought to be made in his favour. I have set out my findings upon the eleven stipulated matters. In addition, I have regard to the present circumstances of Donald. These include his and his wife's poor health and their present financial circumstances. To my mind, an appropriate provision for him having regard to the strong claims of her husband would be one third of the residue of the estate.

84. Accordingly, I propose to order that notwithstanding the provisions of Part 1 Division 6 of the Administration and Probate Act 1958, the residuary estate of the deceased, Louise Withington be distributed as to two thirds to her husband Alfred Withington and as to one third to the plaintiff. In these circumstances the normal order for costs would be that the costs and expenses of the defendant administrators of this proceeding be had and retained out of the estate of the deceased and that the costs of the plaintiff of the proceeding including reserved costs be paid by the defendants out of the estate of the deceased. In deference to the stated wish of counsel, I shall, however, reserve the question of costs for further argument should any party be minded to urge me to make different costs orders.

[1] Section 91(1).

[2] Pontifical Society For The Propagation Of The Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, per Dixon CJ.

[3] In re Allen (deceased); Allen v Manchester [1922] 41 NZLR 218 at 220-1 (footnotes are omitted).

[4] [1970] VicRp 58; [1970] VR 449 at 451.

[5] [2001] VSC 242 at [67].