Petrucci v Fields [2004] VSC 425

Supreme Court of Victoria|2004-10-29|Before: Mandie J

TESTATOR'S FAMILY MAINTENANCE - application by daughter-in-law and grandchildren of deceased - whether deceased testator had responsibility to provide for the proper maintenance and support of widowed daughter-in-law and adult grandchildren - amount of provision.

By originating motion dated 1 May 2003, the plaintiffs seek orders that provision be made for their proper maintenance and support out of the estate of Matteo Petrucci ("the deceased" or "the testator") who died on 30 August 2002 at the age of 93. The plaintiffs say that they are persons for whom the deceased had responsibility to make provision within the meaning of of the (Vic) ("the ").

Part IV of the Act was amended by the Wills Act 1997, which commenced operation on 20 July 1998. The amendments applied to the wills of persons dying after the date of commencement. The Court is only empowered under s.91 of the Act to 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", and the Court is not to make such an order in favour of such a person unless of the opinion that the distribution of the estate by the will does not make adequate provision for the proper maintenance and support of such a person.

In determining whether the deceased had responsibility to make provision for a person, the Court is required by s.91(4) of the Act to have regard to a list of specific criteria. The Court must have regard to the same criteria in determining whether or not the distribution made adequate provision for the proper maintenance and support of the person and also when determining the amount of any provision to be ordered.

It is convenient to extract here the applicable provisions contained in s.91 of the Act:

"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. ... (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); ... 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; ... 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; ... 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."

The Court, both at trial level and on appeal, has now had the opportunity in a number of cases to consider the amended provisions.[1] As Chernov JA (with whom Hansen AJA agreed) said in Blair v Blair:[2]

"... it is probably apt to describe the obligation of the testator that forms the subject of the enquiry under sub-ss. (1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Part IV of the Act, including the decision of Ormiston, J. in Collicoat v. McMillan [[1999] 3 VR 803, 815-824] and Grey v. Harrison [[1997] 2 VR 359, 361, 364-366]. Thus, it is clear enough that the "responsibility" of which sub-s.(1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, sub-s.(3) is essentially concerned with whether the deceased - as a wise and just testator - has fulfilled his moral obligation to make adequate provision for the claimant's proper maintenance and support. Given, however, that the court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of sub-s.91(4) when determining the jurisdictional issues, characterisation of the deceased's relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part IV of the Act. Be that as it may, it should be noted that while the criterion in each of paragraphs (e)-(o) of sub-s.91(4) is concerned with a specific matter, paragraph (p) is open ended, enabling the court to consider "any other matter [it] considers relevant" and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator's moral obligation to the claimant."

In a concurring judgment in the same case (which was relied upon by counsel for the defendant in this case), Nettle JA said:[3]

"I agree with Chernov, J.A., for the reasons which his Honour gives, that the appeal should be dismissed. I wish, however, to add to his Honour's observations with respect to the continuing relevance of the conception of moral duty to the jurisdictional questions posed by ss. 91(1) and 91(3) of the Administration and Probate Act 1958. The court is bound in answering each of those question to have regard to the matters mentioned in ss. 91(4)(e) to (o) and, pursuant to s. 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in ss. 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant."

The first plaintiff, Carmela Petrucci, is the daughter-in-law of the deceased and the widow of the deceased's son, Antonio Petrucci, who predeceased the testator, having died on 1 July 2000. The second, third and fourth plaintiffs are all children of Carmela Petrucci and grandchildren of the deceased.

The second plaintiff, Raffaela Tarquinio (nee Petrucci), having been born on 23 April 1969, was aged 33 when the deceased died. The third plaintiff, Matteo Petrucci, having been born on 25 August 1974, was aged 28 when the deceased died. The fourth plaintiff, Pasquale Petrucci, having been born on 23 March 1978, was aged 24 when the deceased died.

The defendant ("Emilia" or "Mrs Fields"), the youngest daughter of the deceased, is the executrix of the will and estate of the deceased, to whom Probate was granted on 4 November 2002.

By his last will dated 3 November 2000, the testator gave the whole of his estate, after payment of debts and expenses, to his surviving children, as to two-fifths to Mrs Fields, and as to one-fifth each to his children Giuseppe Petrucci, Armando Petrucci and Angela Morviducci (nee Petrucci). The will provided for issue of the said beneficiaries to take should the beneficiary predecease the testator. The deceased's son Antonio Petrucci had predeceased him, and no provision was made in the will for the plaintiffs, the widow and children of Antonio Petrucci. An earlier will dated 18 December 1989 had provided for the deceased estate to be divided into six parts, two-sixths being left to Mrs Fields and one-sixth to each of the deceased's other children including Antonio.

The deceased was born in 1909 in the village of San Marco in Lamis in southern Italy. The deceased, a tailor by occupation, married his wife Raffaela in Italy where all of his five children were born. The deceased migrated to Australia in 1952, leaving his wife and children in Italy. The deceased's son Armando, who was born on 14 October 1938, followed his father to Australia in about 1955. Armando married in 1958 and established his own business.

In 1962 the deceased's wife migrated to Australia with their two youngest children, Antonio (then 20 years old, having been born on 31 May 1942) and Emilia (the defendant, then 13 years old, having been born on 7 March 1948). Antonio was a semi-skilled stonemason in Italy. When he arrived in Melbourne he was employed in a number of labouring jobs.

Two of the children remained in Italy: Giuseppe and Angela. The eldest child, Giuseppe, who was born on 4 April 1935, has three children and is now retired. Angela was born on 6 April 1940 and is married with no children. As a result of Giuseppe and Angela remaining in Italy, the deceased did not maintain close contact with them. There is no evidence before the Court of the financial position or needs of Giuseppe or Angela.

Armando lives in Morwell, Victoria and is also retired and married with six children. There is no evidence before the Court of the financial position of Armando. He did make a Part IV claim which was apparently purportedly settled out of court for the sum of $40,000 plus costs, payable out of the estate, but the Court was not provided with any further details of the settlement or the basis for it (save that there is a passing reference in the first plaintiff's affidavit to the fact that Armando's business in Morwell "foundered" at some unspecified time after 1978).

The first plaintiff was born in Italy on 3 December 1946. Apart from mentioning a sister, no details of her own family or background was provided by her evidence. When the first plaintiff met Antonio in Melbourne in 1967, he was engaged in full-time unskilled employment. At that time Antonio was living with his parents and his sister Emilia in a house at 264 Brunswick Street, Fitzroy. In addition to his full-time employment, Antonio also worked after hours in the deceased's tailoring business which operated from their home. Antonio's work in the deceased's business involved repairs and alterations to men's suits and the making of uniforms under the deceased's direction. While living at home, Antonio contributed his weekly earnings into a fund controlled by the deceased and his work in the deceased's tailoring business was unpaid. The household funds so accumulated were allocated by the deceased for the family's expenses, including the private school education of Emilia, and Antonio received an allowance for transport and other necessities and a small amount for personal use and incidentals.

The first plaintiff and Antonio were married on 10 August 1968. After their marriage, Antonio and the first plaintiff lived with the deceased and his wife for about ten months, and Antonio paid a substantial part of his wages to his parents for board. He also continued with his unpaid tailoring work in support of the deceased's business. After Antonio and the first plaintiff ceased residing with the deceased, although this unpaid work for the deceased continued, it was on a more irregular basis. The first plaintiff testified that she estimated that, before they moved, Antonio performed after hours work for the deceased averaging 20 hours per week, but after they moved it was probably less, however it fluctuated depending on the help needed by the deceased.

Antonio at some stage obtained well-paid employment with Kodak but still provided help to the deceased when requested. Antonio and the first plaintiff purchased their own home in Carlton and their own motor vehicle.

In 1978 the deceased's wife died after a long illness. Antonio and the first plaintiff took responsibility for the care of the deceased's wife during that long illness. The first plaintiff regularly cleaned and cooked for her mother-in-law and the deceased during that time, and she continued to do so for the deceased after the death of his wife.

In or about 1988 the deceased was hospitalised. On his discharge, Antonio and the first plaintiff invited him to come and live with them but he preferred to return to his own home. During the period of three months after his discharge from hospital, Antonio and the first plaintiff visited the deceased every day during his rehabilitation. After that they visited the deceased several times each week, until he regained his health. The first plaintiff testified that either she or Antonio went to the deceased's home, usually daily, "to clean for him and to ensure that he was adequately provisioned in all respects".

The first plaintiff testified that she and Antonio visited the deceased at least weekly for at least an hour and up to half a day from the time when they were first married until about the end of 1999, a period of some 32 years.

Antonio was a dutiful son. On various occasions when the deceased was hospitalised, he visited his father daily. In about mid-1996 Antonio became very ill and was diagnosed with terminal cancer. He spent long periods in hospital where he underwent multiple surgical procedures and chemotherapy treatment. He required morphine for his pain. Nevertheless, he continued to visit the deceased every Sunday and would bring his father lunch together with groceries and incidentals until about the end of 1999. By about January 2000 Antonio was either hospitalised or too chronically ill to leave home.

On 30 June 2000 Antonio passed into a coma at home and died the next day. The deceased visited their home on 30 June 2000. The deceased upbraided the first plaintiff for allowing Antonio to deteriorate to such a condition and for allowing him to return home to die. The deceased said that she should have obtained other medical opinions. In her affidavit sworn 4 August 2003, the first plaintiff said:

"The deceased's criticism of me was unreasonable as I had carefully nursed my husband for many years and his cancer was incurable. My sister ... intervened on my behalf on the eve of my husband's death and the deceased became angry. The deceased said that he had been treated disrespectfully in my home and issued a proclamation to the family that no one was to visit my home ever again."

The deceased did not attend Antonio's funeral on 5 July 2000. Mrs Fields testified that the reason was that the deceased, then 93, was too ill to attend. On the other hand he had not been too ill to visit the home on 30 June 2000. I did not find Mrs Fields' evidence particularly persuasive on this point, but I do not think that it matters because it is not disputed that there was no further contact between the deceased on the one hand and the first plaintiff and her children on the other. It is not possible to attribute blame to the deceased or to the first plaintiff for the breakdown of their relationship, which may have had many causes, although the obvious cause is the only one which is disclosed by the evidence, namely, the "emotional fall-out" from Antonio's terminal illness and death. I note that Mrs Fields assented to the proposition that the death of Antonio caused "some family disturbances".

On 3 November 2000 the deceased made his last will. The first plaintiff alleged that he was taken to the solicitor by the defendant but this was denied by Mrs Fields who said that the deceased was quite capable of organising his own visit to his solicitor and that she knew nothing of it.

At some time, which is not disclosed by the evidence, Antonio and the first plaintiff sold their home in Carlton and purchased the house which remains the family home at 5 Lady Nelson Way, Keilor Downs, of which they were joint proprietors. The property became free of debt but, about 12 months prior to Antonio's death, Domenic, the husband of the second plaintiff got into serious financial difficulties with a business. Antonio and the first plaintiff decided to assist their son-in-law and they borrowed some $200,000 on the security of their house "to clear the problem".

As a result of his illness Antonio had taken an early retirement and received a superannuation pay-out of about $120,000, half of which was used towards the purchase of a small residential unit: Unit 8, 550 Moreland Road, Brunswick West.

The balance of Antonio's superannuation monies were expended mostly before his death on a two-month trip to Italy and on obtaining a second opinion from medical specialists in Italy on his condition. After the payment of funeral expenses there were no funds remaining.

Prior to the death of the deceased the first plaintiff's health had deteriorated. She suffers from diabetes and arthritis. The first plaintiff deposed that "years of piece-work, first for the deceased, and then during the raising of my family" had left her with debilitating arthritis and that she had been unable to engage in paid employment since about 1990. In the financial year prior to the death of the deceased she received income from a disability support pension in the sum of $10,691. She continues to receive that pension. She has a liability under a personal loan, obtained while Antonio was alive, in the sum of about $6,000 or $7,000 and currently has savings in bank accounts totalling about $4,000. The first plaintiff has no other sources of income and due to her medical condition is unable to earn income from the use of her industrial sewing machine which she previously used to earn extra income.

The house at Keilor Downs, now owned by the first plaintiff, is located within the municipality of the City of Brimbank, and is about 22 kilometres from the city. The house was constructed in about 1989 and is a double-fronted, partly two-storey, brick veneer home, with three bedrooms, study, family room and attached garage/workshop. A valuation of the property in the sum of $325,000 was admitted in evidence. The house is subject to a mortgage currently of about $190,000 upon which the repayments are about $1,300 per month.

The first plaintiff is now also the owner of the unit in Brunswick West. It is a first-floor, one-bedroom unit in a 22-unit development constructed in the late 1970s. A valuation of the property in the sum of $150,000 was admitted in evidence. The property is subject to a mortgage securing a personal loan balance in the sum of about $6,000 or $7,000. The gross rental received by the first plaintiff is $580 per month, from which she is paying $300 per month in reduction of her personal loan, and from which other expenses such as rates, insurance and body corporate fees are also paid.

The second plaintiff, Raffaela, now 35 years of age, lives with her mother in the house at Keilor Downs, together with her husband Domenic. They have one child aged 7. The second plaintiff's income in 2001 was $18,610 and in 2002 was $25,559. Her husband is a part-time sales consultant currently earning about $25,000 to $28,000 per annum. They have no assets (other than two motor vehicles, one of which is leased for business purposes). They are indebted to the first plaintiff for the amount secured on the Keilor Downs house, which was borrowed and applied for their benefit. They have undertaken the prime responsibility for making the repayments on that mortgage. The first plaintiff only contributes to the repayments when her daughter and son-in-law are short of funds to do so. The second plaintiff operates her own business from home, hiring out chair covers for weddings and corporate functions. The second plaintiff suffers from epilepsy and requires constant medication. She has been subject to epileptic seizures since she was about 11 years of age. The second plaintiff used to visit the deceased weekly in the company either of her parents or her brothers. She observed (as did her brothers) that her grandfather never acknowledged that her father was ill or dying from cancer.

The third plaintiff, Matteo, now 30 years of age, is divorced and also living at home with his mother. He has been living at home with his mother since the beginning of the year 2001. His income in 2001 was $26,879 and in 2002 was $29,093. He was then employed as a travel consultant. He is now employed part-time as a baggage handler for Qantas, earning between $25,000 and $27,000 per annum. He has no assets, other than a 1990 Alfa Romeo motor car that he purchased by means of a personal loan and which he is paying off by monthly instalments of $540. The third plaintiff also suffers from epilepsy and requires constant medication. He has been subject to seizures since he was about 5 years of age. He used to visit the deceased, his grandfather, regularly.

The first plaintiff's household expenses are divided up between herself and those of the family who are living with her.

The fourth plaintiff, Pasquale, is now 28 years of age. He lived with his mother until May 2002, when he married and moved with his wife, Carmen, to a rented property. His wife was and still is employed part-time and in 2003 was earning about $22,000 to $25,000 per annum. He now resides with his wife at 10 Renfree Gardens, Caroline Springs, a house which they recently purchased for $220,000 subject to a mortgage of about $152,000. The funds for the deposit came partly from their savings and partly through assistance from his wife's parents. Pasquale was formerly employed part-time as a floor sander and as a videographer, and is now employed as a sales consultant for Millers Self-Storage. His income was $7,714 in the year 2000, $14,892 in the year 2001 and $11,962 in the year 2002.

The defendant Mrs Fields qualified as a primary school teacher and over the years obtained the degrees of Bachelor of Education and Master of Education. She was for a time the headmistress of the Years 7 to 8 section at St Monica's College, Epping. She is currently employed full-time as a Transition, SRC, and Health Systems Coordinator at Whitefriars College, Donvale, a partly teaching and partly administrative position which she has held for the last five years. She is currently earning about $58,000 per annum. She and her husband own a house in Botanic Drive, Doncaster, worth about $330,000, and a beach house in Point Lonsdale worth about $200,000.

The assets of the deceased at his death consisted of the residence at 264 Brunswick Street, Fitzroy and cash in the bank. After the house was sold and various expenses paid, the net value of the estate was approximately $920,000. According to the affidavit of the executrix, Mrs Fields, interim distributions have already been made of $180,000 to her and $90,000 to each of the other beneficiaries, a total of $450,000. In addition, she deposes that the additional amount payable to Armando is $62,000 (comprising $40,000 plus costs of $22,000). As at 31 July 2004, the sum of $460,082.25 was invested in a cash deposit account with the Commonwealth Bank. Allowing for estimated administration expenses, and her costs of this proceeding, together with the additional amount payable to Armando, it appears that the balance still available for the beneficiaries, is a little over $300,000. The plaintiffs have not been prejudiced by the partial distribution, as their counsel acknowledged, because they had informed the Master on 27 May 2003 that they claimed provision from the estate of the deceased to the extent of one-fifth, namely the sum of about $180,000.

Consideration of the criteria under s.91:

I turn to consider the facts of the case in the light of the criteria laid down by s.91(4).

(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

The first plaintiff was related to the deceased by marriage, being his daughter-in-law. The relationship existed for 34 years. For 32 years of that period it was also a reasonably close relationship.

The other plaintiffs were the grandchildren of the deceased. They had a normal relationship, as grandchildren, with the deceased, until the death of their father.

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

Putting aside "moral obligation" for the moment, the deceased had no special responsibility or duty towards the plaintiffs, other than existed merely by virtue of his being the father-in-law, or grandfather, of the plaintiffs, as the case may be, and, in that regard, his responsibility to the beneficiaries of his estate was greater to the extent that they were his surviving children.

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

The estate of the deceased, with a value of about $920,000, substantially represents the proceeds of his Fitzroy house. The estate is not particularly large and there were a number of surviving children none of whom, so far as the evidence shows, had any particular need but did have normal claims as children. Further, the children are naturally entitled to expect that the deceased's freedom of testation should be respected, but the estate is large enough to make some provision for the plaintiffs if they satisfy the statutory requirements.

(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

The first plaintiff was at the date of death of the deceased in much the same position as she is now. She has no earning capacity and is in receipt of a disability pension and some rental income. The health of the first plaintiff is not good, suffering as she does from both diabetes and serious arthritis. The first plaintiff owns a house worth $325,000 subject to a mortgage of about $190,000. She owns a small investment property worth $150,000 which is subject to a very small mortgage and produces some income. Her net assets are thus worth about $279,000. She does not have the capacity to pay off the $190,000 mortgage on her house and her security in that regard is dependent upon Raffaela and her husband continuing to meet their obligation to pay off the mortgage. At worst, she could sell the unit and apply the proceeds to reduction of the mortgage on the house and leave herself with a liability of about $50,000 secured on the house. Alternatively, she could sell both properties and utilise the net proceeds to purchase a small unit for herself. At best, she might in due course own both properties free of encumbrances if and when her daughter and son-in-law succeed in paying off the house mortgage. On the whole, her income position is much worse than her asset position.

The second plaintiff has no assets and she and her husband have modest incomes. They have a substantial liability being the responsibility for repaying the mortgage on the Keilor Downs house. No doubt the second plaintiff and her husband have prospects of improving their incomes and the second plaintiff's business may develop, however they have no security and no means to deal with future contingencies relating to business, health or otherwise. The second plaintiff suffers from epilepsy.

The third plaintiff has no assets and a modest income. There is no reason to think that his income earning capacity will ever be substantial. He also suffers from epilepsy and like his sister requires constant medication.

The fourth plaintiff is in a marginally better financial position than his siblings. He and his wife have purchased a house (partly assisted by his wife's parents). However, again it would appear that they have modest incomes and no reserves to deal with future contingencies.

The defendant's financial position may be described as comfortable. There is no evidence that the other beneficiaries are lacking in financial resources or are in financial need, save that Armando, as I have mentioned, is to receive an additional sum in settlement of a Part IV claim.

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

It is not suggested that there are any relevant disabilities.

The first plaintiff is nearly 58. The other plaintiffs are aged 35, 30 and 28 respectively.

(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

On the uncontradicted evidence, the first plaintiff made a significant contribution to the welfare of the deceased and his late wife over a lengthy period. During the long illness of the deceased's wife, the first plaintiff regularly cleaned and cooked for her mother-in-law and for the deceased. After the death of her mother-in-law, the first plaintiff continued to regularly clean and cook for the deceased for a period of about 12 years. During a period of 3 months after the deceased's discharge from hospital in or about 1988, the first plaintiff visited the deceased daily and provided cleaning and food supplies. After the initial period of 3 months, she visited the deceased several times each week until he regained his health. She visited the deceased at least weekly over a period of some 32 years.

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

There were no relevant benefits given by the deceased to any person.

(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

None of the plaintiffs were being maintained by the deceased.

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

There are no persons liable to maintain any of the plaintiffs.

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

There are no disentitling factors arising from the character or conduct of any of the plaintiffs. The merit of the conduct of the plaintiffs is dealt with elsewhere.

(p) any other matter the Court considers relevant

In this case there are other relevant matters which, in my opinion, are of considerable significance.

The first plaintiff lost her husband, a son of the deceased, and the other plaintiffs lost their father. Antonio died at the age of 58. He died after a terminal illness which was diagnosed when he was aged 54. This diagnosis forced him to take an early retirement. There is no evidence as to how long he might otherwise have worked, but there is no reason to think that he would not have worked until, say, 65. The first plaintiff not only lost her prime financial support, but was left with the substantial mortgage liability which they had both incurred to support the second plaintiff. Further, the first plaintiff lost the benefit which she might reasonably have expected from the shared inheritance of her husband in the estate of the deceased, had her husband survived the deceased. The other plaintiffs, while adults, lost the benefit of any support from their father and, in all probability, the long-term benefit of the same shared inheritance.

The first plaintiff's late husband was a dutiful son. Prior to his marriage and for a time thereafter he performed unpaid work for the deceased which assisted the deceased to provide for the family as a whole, including the defendant. Along with the first plaintiff he took responsibility for the care of his mother during her long illness. Along with the first plaintiff he provided support for the deceased from the death of his mother until his own death. His death came as a blow to the deceased with which he was unable to cope.

Did the deceased have responsibility to make provision for the first plaintiff?

It can be seen that a conclusion that the plaintiffs or any of them were persons for whom the deceased had, or did not have, responsibility to provide does not automatically flow from a consideration of the listed criteria. It is not possible to say that the criteria "are satisfied" or "are not satisfied". Consideration of the evidence as a whole in the light of the statutory criteria gives rise to the question whether the deceased had a "moral" responsibility to make any provision for the proper maintenance and support of any of the plaintiffs. In considering the question of moral responsibility, in the light of those criteria, the Court of necessity must have regard to the ordinary circumstances existing in society,[4] or "prevailing community standards"[5] or make a value judgment in the light of current standards, arising as a matter of morality or humanity.[6] The amendments to Part IV have not in general abrogated the basic approach taken by the courts to this question for many years.[7] To adapt the language used by Salmond J in Allen v Manchester,[8] the statutory provisions are designed to enforce the moral obligation of testators to use their testamentary powers for the purpose of making proper and adequate provision for the support of the person concerned, having regard to the means of that person, to the means and deserts of others and to the relative urgency of the various moral claims upon their bounty - the provision which the Court may properly make in default of testamentary provision is that which a just and wise testator would have thought was their moral duty to make in the interests of the person concerned had they been fully aware of all the relevant circumstances.

The Court is not entitled to rewrite the will in accordance with its own ideas of fairness or justice. The Court must place itself in the position of the testator and consider what the testator ought to have done in all the circumstances of the case, treating him for that purpose as a wise and just, rather than a fond and foolish testator.[9]

Mr Wells of counsel for the defendant accepted that a case could arise in which a testator had a responsibility to make provision for his daughter-in-law, but submitted that this was not such a case. He contended that the facts did not show the deceased to have had any moral obligation to make provision for the first plaintiff - such an obligation could not arise merely from her relationship as a daughter-in-law and from the fact that she was the widow of an adult son to whom the deceased might have owed a moral obligation to make provision, had the son survived him. Mr Wells submitted that any obligation to make provision for the son could not extend beyond his death and that, apart from her marriage to Antonio, there was nothing remarkable in the relationship between the deceased and the first plaintiff, a relationship which in any event had broken down before the death of the deceased. Mr Wells further submitted that the first plaintiff had established no financial need other than that created by the decision to mortgage the family home to repay debts incurred in a failed business venture of the second plaintiff and her husband.

Mr Wells further submitted that the first plaintiff could not advance some form of "tracing claim" in effect asserting that an obligation which the deceased owed to his son had somehow transferred to his son's widow and perhaps his son's children.

In my opinion, the deceased had a responsibility to make provision for the proper maintenance and support of the first plaintiff and, as he made no provision at all, he failed to do so. A wise and just testator, in the circumstances existing at the date of death of the deceased, would have made some provision for his widowed daughter-in-law. The moral obligation arose by virtue of the matters I have referred to in considering the statutory criteria, under sub-sections (e), (g), (h), (j), (k) and (p) of s.91(4). In particular I would stress their long relationship (which broke down due to no particular fault of hers) and the significant contribution which the first plaintiff made to the welfare of the deceased and his late wife. Further, the first plaintiff has demonstrated need, especially for additional income. To my mind, in the light of prevailing community standards, it would be a callous rather than a wise and just testator who would totally ignore the needs of his son's widow, given the size of his estate and the competing claims upon it. It is likely that Antonio would have had a legitimate claim to provision. It is one thing to say that that Antonio's claim ceased with his death. It is another to say that his death should cut off his widow from all consideration of her need, especially when she supported her husband in his filial duties and made a significant contribution to the welfare of the deceased in her own right. A wise and just testator would also have regard to the detriment caused to the first plaintiff by the early death of her husband.

Did the deceased have responsibility to make provision for the plaintiff grandchildren?

Mr Wells submitted that the deceased had no responsibility to make provision for the grandchildren. They were adults, they had never been dependent on the deceased, they were all in employment and two of them had spouses who were themselves in employment. Their relationship with the deceased was at best unremarkable. Mr Wells referred to Sherlock v Guest[10] which involved an application for an extension of time to make a Part IV application. Beach J dismissed the application, holding that there was not an arguable case for relief. The application had been made by a son of the deceased and four of his adult children, the grandchildren of the deceased. Beach J said that there was no moral obligation on a grandfather to make provision for the maintenance of his grandchildren simply by virtue of the existence of such a relationship and that such moral obligation would rest on the parents of the grandchild. I note that Beach J added that the material before him was inadequate in relation to the new statutory criteria. Reference might also by made to Harris v Bennett.[11] In that case the plaintiff was a 14 year old granddaughter of the deceased whose parents, although divorced, both supported her. McDonald J referred with approval to what had been said by Beach J in Sherlock v Guest and also to what was said by Warren J, as she then was, in Trescowthick.[12]

Mr Wells also referred to MacEwan Shaw v Shaw[13] in which the plaintiffs were two infant grandchildren of the deceased, born of a de facto relationship of the deceased's son. In that case the plaintiffs claimed sufficient funds to pay for the costs of their secondary education at Wesley College - an unusual claim in the circumstances, which failed. Dodds-Streeton J extensively surveyed the case law and said:

"According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents." [14] "In my opinion, however, where children are in the primary care of their own parents, who are capable of fulfilling their basic needs, prevailing community standards would not, in the absence of some special factor or unusual circumstance impose on a grandparent a responsibility to provide."[15]

The above statements by Dodds-Streeton J must be read in the context of the case and the particular claim then before the Court. It seems to me that grandchildren can neither be "ruled in" nor "ruled out" until all the facts are examined. It is important to distinguish between the general obligation of parents to provide for and support their children and the potential responsibility, in the statutory sense, of a testator, who is a grandparent, to make provision out of his estate for the proper maintenance and support of grandchildren. The obligation of living parents to provide for their children does not necessarily negate, in an appropriate case, the moral responsibility of a grandparent to make provision for the maintenance and support of those grandchildren out of his estate.

In the present case, the plaintiff grandchildren had a normal relationship with the deceased until the death of their father, but not a special or dependent relationship. They do have, I think, a clear need for some provision for their long-term security. They will probably not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and contingencies of life for themselves. In addition, as I have said, they have lost any possibility of immediate or continuing support from their father. In that context, according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provision for them.

I consider that a wise and just testator would not have been bound to make any provision for the immediate needs of the grandchildren. However, I think that a wise and just testator would, looking at the family line constituted by the first plaintiff and her adult children, and considering the loss of their husband and father, conclude that he had a responsibility in the particular circumstances to make some provision for the grandchildren's future needs.

What provision should be made for the proper maintenance and support of the plaintiffs?

In reaching a conclusion as to the nature and quantum of the provision to be ordered, I have taken into account each of the matters which I have mentioned and looked at them as a whole. I have considered the responsibility, in the circumstances, of the deceased to make some provision for the proper maintenance and support of the plaintiffs, according to their respective present and future needs.

It seems to me that the wise and just testator would have recognised the different needs of both the first plaintiff and her children, and made some provision by way of modest additional income for the first plaintiff, and some limited provision by way of capital for the future needs of the grandchildren. In that way the wise and just testator might justly give some recognition to the needs of the plaintiffs and at the same time balance their claims with the competing claims and rights of the existing beneficiaries.

In my opinion provision should be made for the plaintiffs by setting aside and investing the sum of $60,000 (free of interest) on trust to pay the income therefrom to the first plaintiff for her life, and upon her death to pay the said sum to the plaintiff grandchildren in equal shares. The sum of $60,000 should be borne, as to $24,000, by Mrs Field's share of the estate and, as to $36,000, equally between the shares of the three other surviving children of the deceased. It is perhaps inconvenient that the defendant should be trustee for the purpose of this provision and I invite submissions on that point (and also as to costs).

[1] See: In the matter of Trescowthick [1999] VSC 409; Richard v AXA Trustees Ltd [2000] VSC 341; Allan v Allan [2001] VSC 242; Marshall v Spillane [2001] VSC 371; Harris v Bennett [2002] VSC 139; Schmidt v Watkins [2002] VSC 273; Lee v Hearn [2002] VSC 208; (2002) 7 VR 595; MacEwan Shaw v Shaw [2003] VSC 318; Coombes v Ward [2004] VSCA 51; Blair v Blair [2004] VSCA 149.

[4] Allan v Allan [2001] VSC 242, per McDonald J at [68].

[5] MacEwan Shaw v Shaw [2003] VSC 318, per Dodds-Streeton J at [216].

[6] Marshall v Spillane [2001] VSC 371, per Byrne J at [7] referring to In re Allen, deceased; Allen v Manchester [1922] 41 NZLR 218, 220-1 per Salmond J.

[7] Richard v AXA Trustees Ltd [2000] VSC 341, per Eames J at [7]; Allan v Allan [2001] VSC 242; Marshall v Spillane [2001] VSC 371; Blair v Blair [2002] VSC 95; Lee v Hearn [2002] VSC 208; (2002) 7 VR 595.

[9] See Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, per Gibbs J (Mason and Aickin JJ agreeing) at 146, citing Bosch v Perpetual Trustee Co [1938] AC 463, 478-9.

[12] In the matter of Trescowthick [1999] VSC 409.

[14] [2003] VSC 318, at [217].

[15] [2003] VSC 318, at [223].

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

Parties

Cases Cited (2)