Plaintiff v Defendant

"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]

3 The amendments abolished the former approach, traditional in such legislation in Australia and New Zealand, of defining and thereby limiting, those who may apply under Part IV by reference to their relationship to the deceased, as for example in Victoria, widow, widower or children. The requirement of the Act now being that the deceased had responsibility to make provision for the proper maintenance and support of "a person", without a requirement that the person be related by blood or even by marriage to the deceased, means that the present applicant, a niece by marriage, is enabled to apply.

4 Section 91 is the critical section. It directs attention to three stages or issues which the Court must address:

(a) First, whether the deceased had responsibility to make provision for the proper maintenance and support of the applicant[3];

(b) Secondly, whether the distribution of the estate of the deceased does not make adequate provision for the proper maintenance and support of the applicant[4]; and

(c) Thirdly, the amount of the provision (if any) which the Court may order.

In determining each of these issues, and as to any other matter related to an application for an order, the Court "must have regard to" a series of matters specified in s 91(4)(e) to (p).

5 As in the present case the deceased died intestate, the question at the second stage is whether the distribution of her estate effected by the intestacy provisions of the Act[5], do not make adequate provision for the proper maintenance and support of the plaintiff. For this purpose the deceased is to be regarded as having died leaving a will by which she dealt with her estate in accordance with the intestacy provisions[6]. In short, the question whether the deceased had responsibility to make provision for the applicant is "unaffected by whether the deceased died testate or intestate"[7].

6 Since the 1997 amendments came into operation many cases have been decided under Part IV, some brought by persons who would not previously have been eligible applicants, and some of which cases have gone on appeal[8]. The cases have established that the concepts of moral duty and the wise and just testator continue to be applicable in determining whether the deceased had responsibility to make provision for the applicant.

The case law

7 In Blair v Blair[9] Chernov JA, in a judgment with which I agreed, said[10]:

" ... 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 at 815-824] and Grey v. Harrison [[1997] 2 VR 359 at 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 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 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."

8 Nettle JA, who was the other member of the Court in Blair, concurred with Chernov JA and said[11], with respect to the continuing relevance of the conception of moral duty to the jurisdictional questions posed by s 91(1) and (3), that:

"The court is bound in answering each of those questions 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."

9 In Lee v Hearn[12] Callaway JA said that the requirement of "responsibility" to make provision means a legal or moral responsibility, in the sense in which "moral" has been explained in the authorities[13]. In this sense "it is not a static or idiosyncratic concept"[14]. This understanding of that which is "moral" or constitutes "moral duty" not being a fixed and inflexible concept accords with earlier discussions in the cases, including that of Ormiston J, as he then was, in Collicoat v McMillan[15] where he discussed the concept of "moral duty" and "moral obligation"[16]. At [43] he said:

"That 'moral obligation', as described in Re Allen [Re Allen; Allen v Manchester [1922] NZLR 218] and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards."

10 There is reference to "community standards" in the judgment of Callaway JA in Lee[17] where he said, to adapt his language somewhat, that the denotation of the words "what a wise and just testator would consider his or her moral duty" to do, or the content of wisdom, justice and moral duty, may change with time or respond to community standards.

11 In Petrucci v Fields[18], where the claimants were a daughter-in-law and grandchildren of the deceased, Mandie J said at [57], in relation to the first issue of responsibility to make provision, that:

"Consideration of the evidence as a whole in the light of the statutory criteria [in s 91(4)(e) to (p)] 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, or 'prevailing community standards' or make a value judgment in the light of current standards, arising as a matter of morality or humanity. The amendments to Part IV have not in general abrogated the basic approach taken by the courts to this question for many years. To adapt the language used by Salmond J in Allen v Manchester, 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." (References and footnotes omitted.)

12 Later in his judgment, at [64], Mandie J made an observation with which I would, with respect, agree. The observation was made in relation to a submission that the deceased had no responsibility to make provision for the grandchildren, as to which his Honour referred to several authorities[19]. The point made by Mandie J was that whether a grandchild could succeed in a claim must depend on a consideration of all of the facts of the case, and not be restricted by an a priori approach based on the relationship of grandchild. As he said, "grandchildren can neither be 'ruled in' or 'ruled out' until all the facts are examined". The same is true in relation to a person standing in a different relationship to the deceased, such as the plaintiff in the present case.

Facts

13 The plaintiff was born on 7 January 1958. She is the daughter of Jiri (George) Iwasivka and his wife who then lived in Prague, Czechoslovakia.

14 George, who was born on 29 March 1926, had a half brother, Joseph Hasek who was born in 1917. They had the same mother but a different father as Joseph's father died.

15 The deceased, Julie Hasek, was born in Ukraine on 21 December 1918. She married Joseph; when they married is not established on the evidence. They migrated to Australia in 1951. They had no children.

16 Joseph died intestate on 17 March 1997. As his widow, the deceased was entitled to the whole of Joseph's estate under the intestacy provisions of the Act. The deceased did not obtain a grant of letters of administration.

17 The deceased died intestate on 22 April 2003. Letters of administration of her estate were granted to the defendant on 25 June 2003. Her estate at death comprised a house property at 70 Claremont Avenue, Malvern valued in the inventory at $760,000 and some personal estate which, after expenses, produced an estate of approximately $793,000. The house property having been sold for $901,000, the value of the estate at 7 June 2005 was $1,286,866.78, which the parties accept as the present value of the estate for the purpose of this case. Allowing costs and expenses the net estate available for distribution is in the order of $1.2M.

18 Letters of administration of Joseph's estate were granted to the defendant as the legal personal representative of Julie Hasek on 5 August 2003.

19 George died on 19 June 2003. He left very little estate, indeed so small was it that it was insufficient to pay for his cremation and as referred to below the plaintiff had to borrow to pay the cost.

20 After the deceased and Joseph had migrated to Australia, George and Joseph maintained contact. George wanted to go to Australia, as Joseph had, but his wife did not want to leave Czechoslovakia. The deceased and Joseph sent medicines from Australia which apparently helped George's wife, who had had miscarriages, keep her pregnancy with the plaintiff.

21 According to the plaintiff, her parents divorced when she was seven or eight years of age and she was placed in the custody of her father. That would be in 1965 or 1966. I note that in the Selection Officer's Report exhibited to the plaintiff's affidavit, the date of divorce is given as 13 March 1969. I interpolate that it should not be a matter of surprise if the plaintiff, who was then young and has had her ups and downs in life, was inexact with dates. However that may be, when the revolution occurred in Czechoslovakia in 1968 George decided to escape from the country. Taking the plaintiff with him they arrived at the Italian border via Hungary and Yugoslavia and where, having no visa, he drove through the border crossing. On arrival in Italy they were detained for five days, then on being accepted as refugees they went to Trieste for several months following which they were transferred to Latina near Rome where they stayed for about 10 or 11 months during which time George applied for them to migrate to Australia with the sponsorship of Joseph. The Selection Officer's Report in respect of the application to migrate, made at Latina Centre and dated 24 June 1969, states "Joining brother who will provide accommodation and assist with employment".

22 The plaintiff and her father arrived in Australia on 7 November 1969. They were met at the airport by the deceased and Joseph who took them to their home at 70 Claremont Avenue, Malvern. In her affidavit the plaintiff said that they lived there for three to four years, until George rented a house (or unit as the plaintiff referred to it in her oral evidence) around the corner in Wheatland Road. In cross-examination she said that they may have moved out in about 1974 or 1975, she could not remember what year it was, it having been suggested to her that it was in 1973. While living with the deceased and Joseph, George paid board.

23 The deceased enrolled the plaintiff at Malvern Primary School. She made her school uniform. She took her for haircuts and taught her to sew. She bought her first bra. They gardened together. When, shortly after the plaintiff and George arrived in Australia, Joseph, a plumber who was out of work, went to work in New Guinea for a year, and her father was working two or three jobs, the plaintiff became very close to the deceased. They did "everything together". The deceased taught her French, and took her to piano lessons. She taught her to cook Czechoslovakian food and how to make different sauces and dumplings. The deceased loved gardening, which they did together, and they spent time sitting in the garden, talking or playing with her dogs who were like children to her.

24 The plaintiff's father obtained employment "more or less straight away within a couple of months" the plaintiff thought. He was a chef, and worked in cafes, restaurants or hotels. He also had a job in a leather factory.

25 After returning from New Guinea Joseph was out of work for a long time and George helped him get jobs as a cook in places where George worked.

26 George and Joseph were the "breadwinners" in the house. When asked if the deceased ever worked, the plaintiff said that she did some sewing at home when she was younger, but that was all.

27 After George and the plaintiff moved to Wheatland Road she continued to see the deceased. Having commenced at Malvern Primary she attended Malvern Girls' High School until the age of 15. To complete the educational picture, she then went to Swanston Business College where she learnt shorthand, typing and accountancy.

28 When the plaintiff came home from school, because her father was working, she would go to the deceased's place, and on many occasions stay the night. Her father never remarried. As a working single parent who came home late from work he found it very hard to look after the plaintiff. At the deceased's house the plaintiff would do her homework and watch television with the deceased. At times, when Joseph was away, she would sleep in the same bed as the deceased.

29 I interpolate that the plaintiff has had no contact with her mother since leaving Czechoslovakia.

30 She said, and I accept, that the deceased was the closest thing to a mother she ever had. The plaintiff lived in the deceased's house under her care from the age of near 12 to 16 or so.

31 After completing the course at Swanston Business College the plaintiff worked for a short time in an advertising agency and then commenced working for her father in a wine bar/restaurant/steakhouse called Casamanyana which her father ran at premises he leased in St Kilda. This, she said in her affidavit, was in about 1973 but having regard to her oral evidence it may have been a year or so later. Joseph also worked there cooking the carvery roasts.

32 George and Joseph were close and got on well together. The plaintiff recalls being taken by them to a place called Shumuver at Belgrave. This was a social occasion with music and picnics attended by many Czechoslovakian people. In her oral evidence the plaintiff said that a lot of times her father did not go because he was working. She considered that her uncle liked to take her because he did not have children and it was like showing her off in a setting in which other people had their children. The deceased did not go. She did not go out much. She kept to herself. She did not like mixing with people. She did not have friends of her own; visitors to her house were Joseph's friends. She did not have girlfriends and did not like answering the telephone. The plaintiff believed that the deceased's attitude was due to the fact that she and Joseph had come from an authoritarian country. They were very private people who kept everything to themselves. They had a deep mistrust of banks and governments.

33 In 1979 the plaintiff travelled to Europe. At this time her father rented a place in Alma Road, St Kilda.

34 In 1980 or 1981 the plaintiff returned to Australia and not long after travelled to Townsville for a holiday with a person she had met on her travels and with whom she had formed a relationship. The relationship broke up soon after. She stayed in Townsville for another 12 months or so doing casual work. While in Townsville the plaintiff managed without assistance from her father. She always knew that if she needed anything she "could ring them and so it wasn't a problem".

35 In Townsville the plaintiff met Dirk Tuit with whom she commenced a de facto relationship which ended in the early 1990s. The plaintiff and Tuit have continued to have a personal friendship.

36 The plaintiff missed her family and returned to Melbourne in 1983 or 1984, she could not remember which. She lived with her father at his place in Alma Road, with Tuit. The plaintiff continued living with her father until she moved out in 1990.

37 The plaintiff said that as she got older her relationship with the deceased stayed the same, adding in her oral evidence that "nothing changed". The deceased and Joseph invited her to dinner and she often stayed overnight. When she split up with Tuit she talked to the deceased about that. As to exchanging cards and presents, the plaintiff said that her father, Joseph, the deceased and herself as she grew up did not exchange presents or anything like that. Rather, if something was needed it was bought. She added that she did not need financial support "at that time".

38 While the plaintiff's relationship with the deceased stayed the same, the deceased became more private in that she would not always open the door or answer the telephone. The plaintiff thought she became slightly paranoid. In the early 1980s she had her telephone number changed and believed her neighbour was watching her and taping her and making "crank" telephone calls to her. The plaintiff adopted the course of telephoning the deceased before visiting but a lot of times there was no answer. A few times she was worried and rang the police who went and checked.

39 In her affidavit the plaintiff said that when she was a teenager she fell in with a bad crowd and became addicted to heroin. The addiction lasted for a number of years. In 1988-1989, in Victoria, she served a term of imprisonment for a drug related crime. She has since ceased to use heroin. This evidence was clarified by the plaintiff in cross-examination; she said that the drug problem commenced after the trip to Europe, she was not sure of the years, it was in the 1980s. The deceased, Joseph and her father knew she was in prison. She did not want them to visit her. Her father visited her a couple of times. She told the deceased about her troubled past long before Joseph died. She told her in order to clear her conscience. The revelation did not affect their relationship.

40 Turning to the plaintiff's father, he had taken over the lease of restaurant premises in Carlton which, following a dispute with the landlord, was not renewed and in the early 1990s the business was lost. By this time he was suffering from diabetes and epilepsy. Later in her evidence the plaintiff said that in 1997 her father was seriously ill, and she was looking after him.

41 In 1995 the plaintiff went on a disability pension, suffering a bad back and knees, and anxiety. She has been on a disability pension ever since. Her financial position was such that she could not afford to have her telephone put on until January 2003. She would usually call the deceased from a public telephone or from her mobile telephone.

42 As a result of his friendship with the plaintiff, Tuit met Joseph and the deceased. Joseph told Tuit on more than one occasion that when he and the deceased passed on, their house and land would be left to Renata (the plaintiff) and George. Joseph said to him that he and the deceased treated the plaintiff as if she was their daughter.

43 Joseph died of cancer on 17 March 1997. In the course of his illness, while the plaintiff visited him at home (although not often), she particularly visited him on a number of occasions when he was in hospital and at the nursing home where he died. The deceased was usually at the hospital.

44 On the day of, or the next after, Joseph's funeral the plaintiff moved in and stayed with the deceased for about a week or 10 days to help her out and give her support. She did this voluntarily, observing that it was "my family". She helped the deceased clean out her garage and other rooms in the house, Joseph and the deceased having been "hoarders". No-one else helped clean up at this time.

45 After Joseph died the plaintiff rang the deceased every couple of months or the deceased would ring her. The plaintiff had a mobile telephone. She also saw her from time to time.

46 The plaintiff and Tuit visited the deceased when Tuit would attend to odd jobs that needed doing. There was a leak in the roof for which the deceased had obtained a quotation of $5,000 to repair, so the plaintiff asked Tuit to do the work which he did with another man. Tuit also painted a couple of rooms and did general maintenance work. They also helped with the garden.

47 Tuit confirmed having carried out repairs after Joseph died. On these occasions which were "half a dozen times; I went there on three or four weekends actually" over a couple of months, he had a few meals and cups of tea with the deceased who told him that the plaintiff would be left everything. The deceased said to him that she loved the plaintiff dearly.

48 When the plaintiff had the telephone installed she rang the deceased quite a few times. They would talk about things such as the deceased's pets. The deceased told her that she had cleaners come in and that a carer came to look after her. The deceased often mentioned to her, and mentioned in their last telephone conversation in March 2003, that the plaintiff was not to worry as she would be looked after. The deceased had told her on a number of occasions that when she was young, Joseph and the deceased promised the plaintiff the house when she grew up. The deceased said that if anything happened to them "I would get the house, I was not to worry about anything as they knew I was not very well off financially".

49 The plaintiff commenced living in a Housing Commission flat in Geelong in, she thought, 1999, where she still lives. As mentioned, she had a landline installed in 2003.

50 In cross-examination the plaintiff said that she did not help the deceased with things like meals on wheels, or taking her to the doctor. The deceased was very independent, at one stage saying she was changing her doctor because she was unhappy with him. The plaintiff added also that in 1997 her father became seriously ill and she was looking after him. The plaintiff said that she and the deceased used to go shopping together. The deceased had a cheque book and did not need help with banking or other financial matters. The deceased could look after the financial side. There was nothing wrong with her mind. She did not assist with the carers; the deceased had told her what was going on, "the gentleman that used to come around and whatever", and she had a cleaning lady who came a couple of times a week. The plaintiff would see the deceased every couple of months and keep in contact by phone.

51 The last time the plaintiff saw the deceased was in February 2003 and the last time they spoke on the telephone was in March 2003. She was informed of the deceased's death by the defendant in May 2003.

52 The plaintiff's father died on 19 June 2003. He never owned a house in Australia and, as mentioned above, left very little estate. There was not enough money to pay for his cremation and the plaintiff had to seek help from the Geelong Court poor box to help pay the cost. She was given about $500.

53 When the plaintiff swore her affidavit in May 2004 she was receiving a disability pension of $420 per fortnight. In her most recent affidavit sworn on 9 June 2005 she stated that her pension is $459.00 per fortnight which, together with a pharmaceutical allowance of $5.80 and a pension basic supplement of $17.30, gives her a pension of $482.10 per fortnight. That is $241.05 per week. Her only assets were a 1990 motor car said to be worth $1,500.00, $58.00 in the bank and household furniture of nominal value. As to her weekly liabilities, she has Housing Commission rent of $57.35 per week, payments for gas, power and water which total $21.45 per week, and car registration of $4.75 per week, which total $83.55 before food, clothing and other costs of living are taken into account. On the day when she gave evidence she made her last payment on a $500 loan from Centrelink which she had obtained for general expenses.

54 At the time of the trial Tuit was living with the plaintiff. He moves around with his work which at present is driving earthmoving equipment. When he is in Geelong he resides with the plaintiff and shares the expenses. At any one time he would live with her for three or four months or so. Tuit has had his mail sent to her address for some years.

55 The plaintiff believes that she is unlikely to work again given her health. She said that she has bad arthritis in her knees and is presently awaiting an operation.

56 The plaintiff's doctor since 1992, John Sherman, states that she suffers from:

• Osteoarthritis of the knees for which she has been seen by an orthopaedic specialist at Barwon Health and prescribed anti-inflammatory medication.

• Osteoarthritis of the hands causing pain and stiffness.

• Chronic depression for which anti-depressant medication has been tried without much success.

• Intermittent lower back pain due to arthritis.

57 Dr Sherman was not cross-examined. Nor in cross-examination was the plaintiff pressed about her health let alone any prospect of working.

Next of Kin

58 Having died intestate the deceased's estate would pass to her next of kin pursuant to the intestacy provisions in the Act. As the plaintiff is not related by blood to the deceased she has no entitlement in any degree to any portion of the deceased's estate. Her only entitlement would be such as may arise from and in accordance with the terms of any order made in her favour on the present application.

59 In her affidavit the plaintiff said that she believed the deceased had a sister who remained in Ukraine but did not know if the sister had married or had children. The plaintiff did not know who the deceased's next of kin were.

60 An affidavit filed as recently as 10 June 2005 by the defendant deposed as to inquiries and searches undertaken by the defendant to ascertain the next of kin of the deceased. It appears that the deceased was born to Maria Tyman who died in 1939 in Ukraine. Her reputed father was Theodore Magneskoul (Magnuszek) who is believed to have acknowledged paternity. The deceased's mother had five siblings, namely:

• Sophia Tyman, who information suggests migrated to France.

• Iwan Tyman, who may have died in Ukraine and may have had issue.

• Vasilij Tyman, who died as did all his children.

• Adam Tyman, who migrated to Poland.

• Caterina Tyman, who is believed to have died in Ukraine and had no children.

61 The defendant's Genealogical Department has yet to obtain documentation proving the above family tree to be correct. It is said that it presently takes at least six months for a certificate to be issued from Ukraine.

62 It is further stated that from other inquiries made by the defendant it appears that the deceased came to Australia from France in 1951 as a single woman. There is no evidence she had a child, and the defendant has not been able to locate any sister of the deceased or any descendant of such a person.

63 The defendant's affidavits included the following further evidence. A letter from Bayside Community Options to the defendant's solicitors dated 29 June 2004 stated that the deceased was in receipt of a Linkages package from Bayside Community Options from November 2000 until her death, noted that in the file the deceased was described as widowed around 1999 with no children or family and poor social supports, and that the only recorded emergency contact was a friend Milan Kruntorad of 150 Inkerman Street, St Kilda. The letter further noted that the case manager recalled the deceased mentioning a sister (estranged) living somewhere in Europe and the possibility of a cousin in the Geelong area (unconfirmed). Further inquiries by the defendant were unable to locate any solicitor in the Malvern area who had acted for the deceased or held a will for her. Also, in September 2004 the defendant's solicitor was told by the Czechoslovakian Consul that the deceased had a "close friendship" with Milos Kuntorad who used "to mind old ladies" and who had died. It was believed that he had arranged home help and meals on wheels for the deceased, and was the friend referred to as the emergency contact for Bayside Community Options. I add that it seems likely that he was the gentleman that the plaintiff referred to in her evidence referred to at [48][20].

Appropriate to proceed with hearing and determination

64 In light of the information as to next of kin of the deceased placed before the Court by the defendant, I asked counsel for the defendant whether it was appropriate to deal with the case now. That is, should the case be held over until the next of kin are ascertained and their views ascertained? Counsel for the defendant responded that the beneficiaries who may be entitled had had nothing to do with the deceased over the course of her life in Australia such that there would not be any strong competing interests save as might arise from the blood relationship. It was an intestacy, "something which has happened automatically", meaning by that to refer to the automatic operation of the intestacy provisions in the Act. Counsel concluded that it seemed appropriate that the matter be dealt with, adding that it would help in the administration of the estate because the defendant would then know where it was insofar as the plaintiff was concerned. Counsel for the plaintiff said nothing, he tacitly concurring in the submission that it was appropriate for the case to proceed to determination. It seemed to me in the circumstances that the defendant's approach was appropriate and the hearing proceeded. Counsel for the defendant then commenced his final address in the course of which he stated that the defendant did not say that there were any identifiable countervailing interests (to those of the plaintiff) which had to be taken into account.

Witnesses

65 The plaintiff swore two affidavits. Tuit swore a brief affidavit. Each was cross-examined. The only other affidavit filed in support of the plaintiff's case was that sworn by Dr Sherman who was not cross-examined.

66 The plaintiff impressed me as an honest person, quite emotional when giving evidence which in part was reflected in the speed with which she spoke, and otherwise was readily observable. It was, on my observation, a difficult occasion for her, undoubtedly because of the close and special relationship she had with the deceased who, as she said, was the closest thing to a mother she ever had. Tuit answered the few questions put to him in a direct and responsive manner. It was not submitted that their evidence should not be accepted in any particular respect or generally. Then, there is no reason at all, and none was suggested, why the evidence of Dr Sherman should not be accepted. I accept the evidence of the plaintiff and her witnesses.

67 The affidavits filed on behalf of the defendant deposed as to the estate of the deceased and the results of the inquiries as to her next of kin and related matters concerning the deceased. None of those deponents were cross-examined. Excluding some inadmissible commentary, and allowing for some hearsay, the evidence may be accepted for what it may establish and otherwise as to what the next of kin inquiry presently indicates.

Criteria under s 91(4)

68 I now consider the factors which s 91(4) requires the Court to have regard to, avoiding, so far as possible, unnecessary repetition of the facts.

(e) Family or other relationship

69 The plaintiff was the niece by marriage of the deceased, her father being the brother of the deceased's husband. I have described how from the age of 11 she lived with the deceased for some years which I find to have been to 1974 or so, the evidence not permitting a precise finding as to the time when she and her father moved out of the deceased's home. But when they did, the plaintiff continued to visit the deceased and sometimes stayed with her, their relationship being very close. As the plaintiff said, and I accept, the deceased was the closest thing to a mother she ever had meaning, as I find, that the true characterisation of their relationship was that of mother and daughter or as close to that as it may be. I have also described the course of the relationship over the years subsequently, during which time the plaintiff grew to adulthood and sought to find her way in life. While she did so, and had her ups and downs as commonly occurs in life, a close relationship continued between the plaintiff and the deceased.

70 The relationship between the plaintiff and the deceased should be seen in the context also of the family relationship arising from the plaintiff's father and the deceased's husband being brothers. There is the factor of migration to Australia, the plaintiff and her father being sponsored by Joseph, and on arrival in Australia being taken in by the deceased and her husband, the mutually supportive relationship that existed in the household and which later extended to the plaintiff's father aiding Joseph with employment, and the evidently close family relationship between them all.

71 Lying at the heart of this, and which cannot be overlooked, is that the plaintiff never saw or had contact with her mother after she left Czechoslovakia, a loss and deprivation capable of being of immeasurable depth and effect on a child and which could not be overlooked as a factor when considering the plaintiff's course in life, and which might be supposed to have been appreciated by the deceased. When the deceased took the plaintiff into her home she took on the role of mother to her niece, filling the void in that respect in the plaintiff's life, a void which was not otherwise filled. Without repeating the facts set out above, it is evident that in the ways referred to and doubtless in other everyday respects not specifically recalled, the deceased was as a mother to the plaintiff and, as such, in her young and formative years provided a home, emotional support and direction in life as a mother would to her daughter. It was this relationship, akin to that of mother and daughter, and as close thereto as might be, which counsel for the plaintiff submitted provided the foundation for the deceased having had responsibility to make provision for the plaintiff. Of course related to that was the evident financial need of the plaintiff for provision.

72 In the course of his submission counsel for the plaintiff referred to some decisions in cases brought in the Supreme Court of New South Wales by a nephew or niece of the deceased under the Family Provision Act 1982 (NSW)[21]. It was said that those cases showed success in circumstances strikingly similar to the present case. However, due to differences in the legislation the decisions are of "marginal utility" as Cummins J observed in James v Day[22]. The safer course, and that which I follow, is to decide the case on the facts in light of the Victorian legislation.

73 While submitting that the plaintiff had not established that the deceased had responsibility to make provision for the plaintiff, counsel for the defendant submitted in particular that to succeed the plaintiff had to establish the existence of a mother/daughter relationship which she could not do, there not being "that closeness that exists between a mother and a child", a proposition which he quickly said he did not persist in. If he had persisted in the proposition I would have rejected it for the reasons already stated at [71] above. A little later counsel said that whether the plaintiff succeeded depended on her establishing that she was a surrogate daughter of the deceased, "and she stands or falls on that".

74 In seeking to establish this submission counsel for the defendant considered not merely the initial period when the plaintiff lived with the deceased but the whole spectrum of events subsequent to that time and referred to above. The various points made, or features of the chronology referred to, as to the present factor in para (e) and the factors in s 91(4)(f) to (p) are set out in counsel's written outline of argument which I have initialled and placed on the Court file and to all of which I have regard. Among the factors pertaining to para (e) were these. The plaintiff first met the deceased when she arrived in Australia. She lived in the deceased's house as the child of her father, as a result of him taking her there. Then, she moved to other premises with her father and the deceased continued to provide emotional support, but financial responsibility was with her father. After she finished secondary schooling contact with the deceased appeared to have diminished, that submission simply tracing through the facts outlined above.

75 In concluding as I have as to the nature of the relationship between the plaintiff and the deceased I have taken account of the defendant's submission. When the plaintiff came into the household of the deceased and Joseph she was welcomed, treated and nurtured as a daughter by the deceased and, I would add, Joseph. The plaintiff and the deceased had the mutual benefit of that relationship during a number of the plaintiff's most important and formative years. The fact that, as the facts indicate, the plaintiff travelled, lived in Australia in parts distant from the deceased and had contact such as has been set out above, does not mean that the relationship of, or akin to that of, mother and daughter ceased. After all, is that not what happens in ordinary families where parents strive to bring up their children to be independent, to live their lives away from home, make their own decisions in life and cope with the consequences, while maintaining such contact as is practicable in the circumstances? There are no simple rules in families but it would be a remarkable proposition that as a child matured to adulthood and went his or her own way the relationship of parent and child was to be taken as having ceased. I find that the relationship I have described did not cease here but continued to the time of death of the deceased. It was in part reflected in the emotional state the plaintiff manifested in giving her evidence. It was also reflected in the various events referred to in the chronology of facts including the statements of the deceased as to loving the plaintiff and leaving the house to her. The fact that while living in Geelong in ill health and parlous circumstances, and having her father to aid, the plaintiff did not attend upon the deceased in Melbourne as a carer or assist in such a way was not inconsistent with a continuing close relationship. Rather, it was the product of the prevailing circumstances.

(f) Obligations or responsibilities of the deceased

76 As far as the plaintiff is concerned, the deceased owed her obligations and responsibilities in virtue of the relationship between them being of or akin to that of mother and daughter. The relationship went beyond that of a niece by marriage. Apart from that and the deceased having, as counsel conceded, supported the plaintiff financially when she was with her, the deceased had not provided financial support to the plaintiff.

77 The deceased was not obligated or responsible to any other person. As to other persons, both her husband and Mr Kruntorad are dead. And, as counsel for the defendant observed, there is no evidence of contact between the deceased and any relation overseas.

(g) The size and nature of the estate

78 I have already referred to the size of the estate. It is large. Allowing for costs and expenses an amount in the order of $1.2M is available for distribution.

(h), (i) & (j) Financial resources and needs

79 The plaintiff's only income is the disability pension of $241 per week out of which she must pay, or seek to pay, all her living expenses. It would take little imagination to appreciate that this is at best a minimal amount for her to survive on. She has previously had to borrow $500 from Centrelink for general expenses, a debt which she finished repaying on the day of the trial, and it must be within reasonable expectation that such a need to borrow money will arise again in the future.

80 Further, the plaintiff, who is only 47, and who has been in receipt of a disability pension since 1995, is in such poor health that it is unlikely that she will work again. As noted above, counsel for the defendant did not press the plaintiff or Dr Sherman as to her health or prospects of working. Indeed, counsel for the defendant conceded that it would appear the plaintiff was unable to work. I find as a fact that the plaintiff is presently unable to work and is unlikely to do so in the future.

81 As noted already, the plaintiff has virtually no assets, that which she has being of little value, and the motor car doubtless being a depreciating asset. She has no capacity to acquire assets, or improve her financial position or indeed to do any more than feed and clothe herself in a manner and to the extent that the pension might allow. Subject to the strength or otherwise of her spirit, as to which I note she suffers chronic depression, her future is financially and generally bleak.

82 It is manifestly apparent that the plaintiff has a need for financial assistance or, to use the language of s 91(1), "maintenance and support". I am satisfied that the deceased was aware of the plaintiff's state of health and financial circumstances at the time of her death.

83 There is no evidence as to the position of any next of kin of the deceased.

(k) Contribution of plaintiff to building up the estate and welfare of the deceased

84 Taking first the building up of the estate, the plaintiff did not do so in a financial sense. It may be noted however that her father assisted the deceased and Joseph by assisting Joseph with employment. Otherwise, the plaintiff supported the deceased and helped her clean up her home following Joseph's death and Tuit carried out some maintenance work. Then, as to the welfare of the deceased or her family there are the two matters just mentioned, the matter of visiting Joseph when he was ill, of the deceased and the plaintiff going shopping together, and the visiting and telephone communication over the years. On the other hand, as counsel for the defendant pointed out, there was no evidence that the plaintiff helped with medical appointments or with Bayside. As to this, the plaintiff moved to Geelong in 1999 and in her circumstances could not be travelling to and from Melbourne to care for the deceased. Also, the deceased was an independent person who had been able to manage her finances and choice of doctor.

(l) Benefits previously given by deceased

85 The deceased did not give any financial benefit to the plaintiff and there is no evidence of any benefit given by her to her next of kin.

(m) Plaintiff being maintained

86 The plaintiff was not being maintained by the deceased at the time when she died. Earlier, when the plaintiff lived with the deceased, and subsequently at the times when the plaintiff stayed overnight and when she stayed with the deceased following Joseph's death, it may be said that the deceased in part maintained the plaintiff. That was because the plaintiff was residing in the deceased's home and at these times the deceased provided comfort and sustenance to the plaintiff. I have said "in part" because in the initial period when the plaintiff and her father lived with the deceased and Joseph, her father paid board. There is not otherwise evidence that the deceased gave the plaintiff money or other financial support, although she may well have done so, as for example by providing some money for school or other relatively minor expenses at that time or later, but no such assistance would have been substantial and it was not appreciable enough for the plaintiff to have mentioned it.

(n) Liability of others to maintain plaintiff

87 No other person is under a liability to maintain the plaintiff.

(o) Character and conduct of plaintiff

88 It was not put by the defendant that the character and conduct of the plaintiff disentitled her from the benefit of an order under Part IV. I find it to be the case that there were no such factors as would disentitle the plaintiff. In accepting the plaintiff's evidence I accept that the revelation of her troubled past did not affect the plaintiff's relationship with the deceased.

(p) Any other matter

89 Under this heading counsel for the defendant referred first to the operation of the intestacy rules and then speculated as to what would have happened if Joseph had survived the deceased. In that event the estate of the deceased, she having died intestate, would have passed to Joseph. If Joseph had made a will, and having no children, he may have left the whole or part of his estate to his brother George or to the plaintiff; conversely, if he died intestate George would have been entitled with other next of kin and George's share would have passed to the plaintiff. All of that is theoretical and speculative, and does not go to establish a responsibility in the deceased to provide for the proper maintenance and support of the plaintiff. I merely note that both counsel pointed it out as the scenario that might have occurred. Otherwise there is no other relevant matter.

Responsibility to make provision

90 Counsel for the plaintiff submitted that in the circumstances the deceased had a responsibility to provide for the plaintiff. This was founded in the family relationship that flowed from the close relationship between the plaintiff's father and the deceased's husband, and in which circumstances the relationship between the deceased and the plaintiff was no different to that of a mother and daughter. It was but a reflection of that relationship that the deceased made statements to the effect that she loved the plaintiff dearly and that the plaintiff would be looked after and would get the house. Further, not only did the plaintiff demonstrate a financial need, but the deceased was aware of her financial position. The plaintiff had a need for her own home and a capital sum to make her life more comfortable. It was submitted that a substantial provision in the region of two-thirds of the estate would be appropriate.

91 On the other hand counsel for the defendant submitted that the plaintiff had not established that the deceased was under a moral duty to provide for the maintenance and support of the plaintiff and that the claim should be dismissed. In the course of the submission it was said, in summary, that the plaintiff may have had a good niece/aunt relationship, but that was it. There was an emotional dependence when the plaintiff lived with the deceased, but in later years contact was infrequent and often by telephone. The plaintiff was not dependent upon the deceased financially. The plaintiff appeared not to have helped the deceased regularly in her home, and did not help with medical appointments and Bayside. I have already referred to a number of these matters. It was pointed out, correctly I might add, that mere friendship, kindness or generosity towards the deceased was not sufficient in itself to attract the obligation to provide by will[23]. Finally, it was submitted that if the deceased was under a moral duty to provide for the plaintiff, the obligation was not large and would be met by a small nest egg to provide some security as a reserve fund or a deposit on a house. In his oral submissions counsel described this as the sort of substantial legacy that a loving, loyal niece might receive from an aunt, "perhaps a figure of $70,000 to $100,000 comes to mind". This would be enough to provide some support in life to the plaintiff and recognise the nature of the relationship.

92 In thus referring to counsel's submissions I have moved from the first issue under s 91(1) to what counsel said in relation to the third issue as to the amount of an order. For the moment however I will consider only the first issue.

93 A central issue on which counsel differed was the nature of the relationship between the plaintiff and the deceased. An essential element in the defendant's case was that the relationship was that of a niece and her aunt and that the relationship was not that of, or akin to, the relationship between a daughter and her mother. It is seen that that element was pressed in counsel's final address. As already stated, I reject that submission and find that the relationship was of the nature of that between a mother and daughter. It is unnecessary to refer again to the close emotional, supportive and nurturing relationship that existed between them. Thus established it was not put away as the years passed in the plaintiff's adulthood. Indeed there were times such as when the plaintiff supported the deceased following Joseph's death that she can be seen as responding in that relationship to the circumstances.

94 In my view, having regard to all the relevant circumstances, the deceased had responsibility to make provision for the proper maintenance and support of the plaintiff. I accept the evidence of the statements made by the deceased (and Joseph) which reflected that she herself was of the view that the plaintiff should receive her (their) benefaction. It may be speculated as to why she did not make a will, although the explanation may have been the product of her private nature and mistrust of authority as to which Joseph took the same position. But, whatever be the reason, the relationship with the deceased and all its attendant circumstances was such as to warrant recognition by the deceased, and such recognition was also to be expected having regard to the plaintiff's overwhelming need for maintenance and support of which need the deceased was aware. Further, the deceased's estate was of such a size that she could readily have provided for the plaintiff.

95 The deceased having failed to make any provision at all for the plaintiff she thereby failed to discharge her responsibility in the sense in which that has been explained in the authorities.

What provision should be ordered?

96 In determining the nature and amount of the provision that the deceased as a wise and just testatrix should have made in satisfaction of her moral duty to the plaintiff in light of current community standards, I have regard to all the circumstances. And I do so without any consideration of rewarding the plaintiff for her past kindnesses, support and company of the deceased. The question is what a wise and just testatrix ought to have done in the circumstances, approaching that question as indicated in the cases referred to earlier.

97 There is no need to repeat the facts concerning the plaintiff's health and financial position. I take account of those matters which include the benefit of a pension. I agree with counsel that the appropriate form of provision is a sum of money. Undoubtedly, in my view, a wise and just testatrix would have provided a capital sum to give the plaintiff protection for the future. The question is how much.

98 As to that, the plaintiff lives in accommodation rented from the Housing Commission, is dependant on a disability pension, is aged 47, unlikely to work again, requires medical treatment, has no fund saved or ability to save and a likely need to borrow in the future.

99 Counsel for the defendant suggested a small nest egg to provide some security as a reserve fund or a deposit on a house. If an amount in the range suggested were treated as being for, or was used as, a deposit on a house it is difficult to see how the plaintiff could afford repayments on a loan for the balance of the purchase price. Further, if it was so used it is difficult to see that the plaintiff would be left with any amount as a nest egg. If, however, it was retained as a lump sum it would provide a fund which would provide some security for expenses and buffer against future contingencies.

100 As against this, counsel for the plaintiff suggested a larger sum to enable the plaintiff to purchase a house and provide a fund for contingencies.

101 In my opinion provision should be made for the plaintiff by providing a legacy of $700,000. That would provide her with an amount to enable her to purchase her own accommodation and leave her with a fund as a measure of security for future expenses and contingencies. I consider that to be conservatively assessed as the minimum which the deceased should have provided.

Order

102 The order will be that the estate of the deceased be administered on the basis that out of the estate there be paid a legacy of $700,000 to the plaintiff. Subject to anything counsel may say there will be the usual orders for costs.

[1] The amendments were made by the Wills Act 1997 which came into operation on 20 July 1998.

[2] Section 91(1).

[3] Section 91(1).

[4] Section 91(3).

[5] Part 1, Division 6.

[6] Re Russell [1970] QWN 22, referred to in Vigolo v Bostin [2005] HCA 11; (2005) 213 ALR 692 at 708 per Gummow and Hayne JJ; see also Re Wren [1970] VicRp 58; [1970] VR 449 at 451 per Smith J.

[7] Lee v Hearn [2005] VSCA 127 at [3] per Callaway JA.

[8] On appeal, Coombes v Ward [2004] VSCA 51; Blair v Blair [2004] VSCA 149; Lee v Hearn [2005] VSCA 127.

[9] [2004] VSCA 149.

[10] At [13].

[11] At [41]. These observations were referred to with approval in Lee v Hearn [2005] VSCA 127 at [4] per Callaway JA in whose judgment Batt and Buchanan JJA agreed.

[12] [2005] VSCA 127.

[13] At [5].

[14] At [8].

[15] [1999] 3 VR 803.

[16] At [36]-[47].

[17] At [8].

[18] [2004] VSC 425.

[19] Sherlock v Guest [1999] VSC 431; Leahey v Trescowthick [1999] VSC 409; Harris v Bennett (No 1) [2002] VSC 139; (2002) 8 VR 411; MacEwan Shaw v Shaw [2003] VSC 318 at [217] and [223].

[20] His name is spelt differently, as I have set it out, in the evidence; I cannot determine which spelling is correct.

[21] Massie v Laundy 7 February 1986, Young J BC8601246; Mitrovic v Perpetual Trustee Co Ltd [1999] NSWSC 900; Morgan v Public Trustee [1999] NSWSC 1112; Heffernan v Poyser [2000] NSWSC 126; Pata v Vumbuca [2002] NSWSC 167.

[22] [2004] VSC 290 at [34].

[23] Schmidt v Watkins [2002] VSC 273 at [23]- [24].