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[2006] VSC 113
Supreme Court of Victoria
2006-04-07
BYRNE J
Original judgment source is linked above.
Family provision - adult male claimant - claimant sexually abused by deceased as a child - whether a person for whom deceased has responsibility to make provision.
1 The plaintiff, Scott Leon Bentley, seeks further provision from the estate of David Rodney Bull who died on 4 December 2001 leaving a will dated 12 August 1988. A copy of this will was proved on 28 March 2002 by the surviving executor Janet Mary Brennan who is the defendant in this proceeding.
2 For some time prior to his death the deceased had lived in a house at 5 Rae Street, Hawthorn with his two unmarried sisters, Marjorie and Ruby Lynette, but at the date of his death, they had predeceased him. This meant that the substantial asset of his estate was represented by his half interest in Rae Street plus a further quarter share of this property which he inherited upon the intestacy of his sister, Ruby Lynette. The executor values Rae Street as at 1 March 2006 in the sum of $1.3M so that the interest of the deceased is valued at $650,000 in his own right and $325,000 as a beneficiary under Ruby Lynette's estate. The total estate of the deceased, including personalty, is valued at $1,070,800 including Rae Street, with expenses of $149,280 including the estate costs of this litigation which are estimated to be $25,000. The net present value is therefore of the order of $921,280.
3 The deceased was born on 26 February 1920 and died unmarried without children. The distribution of his estate under the will was as follows: three-quarters of residue passed to each of two nieces and his nephew, the defendant Mrs Brennan, her sister Helen Eva Palma and her brother David John Bull, in equal shares. The remaining one-quarter of residue passed to three friends of the deceased, Paul Andrew Harris, the plaintiff Scott Bentley, and Malcolm Alexander MacLeod.
4 Mr Bentley was born on 30 August 1961. He was not related to the deceased but he had known him since about 1969 when he was but 8 years old and the deceased was about 49 years old. The point of contact was their mutual interest in sailing at the Carrum Sailing Club.
5 Mr Bentley said that, notwithstanding his age, the deceased then began to make sexual advances to him and this led to inappropriate sexual activity between himself and the older man. This activity was cloaked by their common interest in sailing and, from 1970, when he was 9 years old, the deceased used to take him and another boy, Paul Harris (another beneficiary under the will), away on holidays. This inappropriate and, indeed, criminal activity by the deceased and the plaintiff continued for some eight years when he, at the age of 16, put an end to these sexual activities. This must have been in 1975 when the deceased was about 55 years old.
6 Mr Bentley said that, notwithstanding this, the two men remained close friends. He said that the older man was "at times like a father to me; and at other times he was like a lover but always he was my dearest true friend". And so, when the plaintiff was about 20 years of age, consensual sexual relations began to take place between them and this continued until after the deceased had a second heart attack. This heart attack was fixed as occurring about the mid 1980's. The ages of the two men, then, would have been about 24 and 65 years respectively.
7 The will of the deceased was made on 12 August 1988.
8 The nieces and nephew said that they were unaware of this conduct of their uncle and they resisted these imputations against him. They were, naturally enough, unable to lead direct evidence in contradiction of the plaintiff's allegations.
9 I am mindful of the fact that allegations of this kind are difficult to test at any time and, particularly so when the other party is deceased. This fact, together with the obvious fact that conduct of the deceased with Mr Bentley while he was under age is disgraceful and criminal conduct, causes me to approach my fact-finding task with considerable caution. While the standard of proof in this case remains the balance of probabilities, I address the evidence having regard to the seriousness of the allegations and to the fact that an adverse finding will cast a slur upon the character of a man who is unable to defend himself.
10 That said, I am, nevertheless, satisfied that the allegations of sexual molestation of Mr Bentley as a child have been made out. Evidence was led from another beneficiary, Mr Harris, to the effect that he witnessed sexual activity between the deceased and Mr Bentley on camping trips and that he, too, was prevailed upon to commit sexual acts with the deceased. He was at the time only 10 to 12 years old. His testimony as to this was not shaken.
11 Some evidence confirmatory of Mr Bentley's account of these early days is found, too, in an entry in a diary maintained by the deceased. These diaries commence in 1976 and continue with a few missing annual volumes, up to 2001. Counsel for the plaintiff has extracted all the entries containing a mention of his client and these were tendered in evidence. Counsel for the executrix accepted that these entries were evidence of the truth of their content. Mr Bentley said that the deceased who was a retired school teacher used to coach him when he was preparing for his examinations as an apprentice motor mechanic. These lessons took place at the plaintiff's father's house and the deceased would stay afterwards for the night in the boy's bedroom. Sexual advances occurred on these occasions and on other occasions in a caravan which the deceased had at the rear of the Rae Street property. The plaintiff said that the preparation for exams occurred when he was 15 years old which would fix the year as 1976. His evidence is supported by entries in the deceased's diary which show that on three occasions in October and November 1976 he went to Seaford to coach Mr Bentley and that, on two occasions only, he returned home. I do not suggest that this evidence on its own amounts to much, but it does in some measure provide support for the otherwise surprising account of the plaintiff.
12 Dr Brian Dunn is a general practitioner who practised for some years at Frankston. He gave evidence of the present psychological condition of Mr Bentley. The doctor said that Mr Bentley had been his patient since 1986. He said that Mr Bentley "presented to me with a mixture of depression and anxiety" and that he treated him for this. Dr Dunn said that in early 2002 his patient "stated that he had been the victim of sexual abuse over a number of years, and I considered, with the benefit of hindsight, that this might have been a significant causative factor in the development of his depression and anxiety". This history, of course, depends upon the statement of Mr Bentley and is not, strictly speaking, corroborative of his sworn testimony. As I have mentioned, I accept that the paedophiliac abuse occurred over a period of eight years since 1969.
13 The plaintiff also placed reliance upon the events which occurred and the resumption of the relationship in and after 1981 or thereabouts. He said that from that time the two men resumed a loving relationship and that sexual activity took place between them until the deceased had his second heart attack in the early to mid 1980s. Thereafter, he said, sexual activity ceased because of the deceased's physical incapacity. Nevertheless, he said, "we would still sleep together, cuddling each other and with [the deceased] attempting to have sex". This, he said, continued sometimes at his home and sometimes in the caravan at the rear of Rae Street. The relationship continued until the death of the deceased on 4 December 2001. Mr Bentley said also that he was often at Rae Street providing assistance and doing gardening, car maintenance and other odd jobs for the deceased.
14 During the period from the early 1980s to 2001 a number of relevant events occurred. The deceased's sisters, Marjorie and Ruby Lynette died in 1997 and September 2001 respectively. For some time one or other or both of them were living in a nursing home. In 1994 Mr Bentley married and lived at Talbot near Maryborough with his wife. There were two children of the marriage, Guy born 31 January 1996 and Rahn born 12 May 2000. In 1997 Mr and Mrs Bentley separated for nine to 10 months with a final separation occurring on 8 May 2002.
15 The evidence of Mr Bentley showed his movements during this period as follows:
Apprentice Motor Mechanic, the last 18 months at Frankston.
Returned to Melbourne and lived at Moorooduc Caravan Park. Accident at work with Chem Organic.
Moved to Frankston. Another accident at work - broke his back.
Lived at Rae Street three to five days per week in the winter months.
When he was cross-examined upon these matters and, in particular, about the chronology, Mr Bentley was not at all certain of the dates. The general picture of his movements in this period was, nevertheless, confirmed by him.
16 The existence of a friendship between the deceased and Mr Bentley is confirmed by the evidence of his visits to Rae Street and also by the many entries in the diary which show him, and at times, his wife and son at Rae Street assisting the deceased in various ways, particularly in 1998 and 1999. None of the diary entries, however, points to an intimate relationship between them. In fact there is a striking absence of entries relating to the work accident in 1989 and the motorcycle accident in 1993 in which Mr Bentley suffered serious injuries. Furthermore, the gardening activities which he is recorded as performing in 1998 to 1999 appear, on their face to be inconsistent with the continuing disability due to his injuries which he is said to have suffered. It may be significant too that Dr Dunn made no mention of these incidents or of any continuing physical disabilities of Mr Bentley as a result of them.
17 A point of which much was made by counsel for the executrix was that the first time mention was made of their adult sexual relationship was in Mr Bentley's affidavit sworn 31 August 2004 in reply to the affidavits filed on behalf of the defendant. No mention of the relationship is made in his principal affidavit sworn in support of this application on 10 September 2002. In this affidavit he refers only to the sexual abuse he suffered as a child. Mr Bentley explained this by saying that he was then still married and that he was embarrassed to disclose a continuing homosexual relationship at that time. Dr Dunn said that he understood that the sexual relationship had terminated in the plaintiff's teenage years but that the two men continued in a caring relationship thereafter. Other evidence led by the plaintiff in support of his intimate adult relationship with the deceased since the 1980s essentially depended upon his own oath. I bear in mind, too, that he was married and living with his wife since 1994, subject to the days in which he lived at Rae Street and during the period of separation in 1997 when he said he lived at Rae Street. I do not, however, place much reliance upon this for present purposes, for the fact of his being married does not lead to the conclusion that he might not, at the same time, have had a homosexual relationship, as he says he did.
18 Having weighed the evidence relating to the adult relationship in this case, I conclude as follows. I accept that sexual relations ceased between the two men in the period from about 1997 to about 1981. I accept, however, that after 1981 they resumed the relationship which was more intense than one between mere friends. I find that, from time to time, this relationship found a sexual expression. Prior to the deceased's second heart attack this expression took the form of sexual intercourse and, thereafter, the sexual activity was less intimate. It seems likely that the younger man retained a great affection for the deceased but they did not enjoy anything like a domestic partnership. It may well be that the older man shared his affections with persons other than the plaintiff, and there is no evidence as to how he saw the relationship between himself and the plaintiff.
19 During the period, from 1981 to 2001, Mr Bentley obtained some financial support from the deceased. In his final submission this was described by his counsel as "modestly supportive in a financial way". The evidence shows that the deceased used to pay Mr Bentley for his work at Rae Street and that he sometimes lent his friend money. For the most part these loans were repaid. I do not find from this that the plaintiff was financially dependent upon the deceased or that, during his lifetime, the deceased assumed a responsibility to provide for the maintenance and support of the plaintiff.
20 Section 91 of the Administration and Probate Act 1958 empowers the Court in circumstances to which it applies, to override the traditional freedom of testators to dispose of their property as they see fit. In general terms, the Court may interfere in a case where the disposition effected by the will of the deceased offends the moral obligation of a testator, as this is perceived having regard to current community standards. In a case such as the present, it requires me to address three questions:
(1) Was the plaintiff a person for whom the deceased had a responsibility to make provision in his will?
(2) If yes to (1), did the distribution of the estate of the deceased under the will include adequate provision for the proper maintenance and support of the plaintiff?
(3) If no to (2), what is a proper provision for the maintenance and support of the plaintiff?
In considering each of these questions, I must have regard to the 12 matters set out in s. 91(4). The authorities show that the judgment required for an answer to questions (1) and (2) involves an assessment of what is referred to in this area of law as the testator's moral obligation or duty. This is a shorthand expression which calls up the statements in the authorities which require the Court to put itself in the seat of the wise and just testator and determine what, in the circumstances, this testator would see to be the proper provision, if any, which his or her moral duty or obligation required to be made for the proper maintenance and support of the claimant.[1] In Collicoat v McMillan Ormiston J observed:
"That 'moral obligation', as described in Re Allen;[2] 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".[3]
21 His Honour was then writing in 1995. Since that date, the statute has undergone a fundamental change in admitting as claimants persons who fall outside the previously specified class of family members. And so, the first question is to determine whether the plaintiff falls within the class of persons for whom the deceased had a responsibility to make provision. As Callaway JA points out, this responsibility must be "a legal or moral responsibility, in the sense in which 'moral' has been explained in the authorities, for what other kind of responsibility is there?"[4]
22 This statement must lay to rest the concern expressed by Chernov JA in Coombes v Ward[5] that references to the concept of morality in this area may act as a distraction from the application of the statutory criteria set out in s. 91(4).[6] As Nettle JA pointed out in Blair v Blair[7], the attention that must be directed to those criteria by a judge acting in obedience in s. 91(4) provides no answer to the question as to the existence of a responsibility to make provision; some yardstick must be brought to bear.
23 Moreover, it may be that the statutory criteria have a different role to play in their application to the three questions which the Court must address under s. 91. The first question is, to my mind, directed to the status of the claimant vis-à-vis the testator - the relationship which existed between them. It replaces the mechanical approach adopted under the repealed legislation of identifying this status by blood relationship of a particular kind. The amended provision recognises that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for. If this were not the case, then, in a case where no testamentary provision was made for the claimant, the first and second questions would merge.
24 The reference to accepted community standards requires a consideration of what those standards of the general community are at the time from which the will speaks[8]. They may change from time to time. For example, I would have little difficulty in concluding today that a relationship between the testator and an unmarried heterosexual partner or between a testator and a homosexual partner would today be seen by the general community as one which might give rise to a moral obligation just as a relationship with a spouse. The challenge presented by a case such as the present arises at a different level. I am required to analyse the conduct, including statements, of the parties and witnesses in order to form an assessment of the true relationship which existed between the deceased and the claimant in order to determine the existence or not of the moral duty. As is usual in these cases there is no evidence from one party to the relationship, the deceased. In the case of a family relationship or a heterosexual relationship, I would be able to bring to bear my own experience. Difficulty arises where this is a relationship between members of a community with which the judge is not familiar. This may be a particular ethnic or social community; it may be a community whose bond is that of sexual orientation. In the absence of evidence of this, which may or may not be available or perhaps inadmissible, the judge must do the best he or she can, bringing to bear wisdom, an openness of mind drawing upon long experience of life and human conduct and attitudes, and above all, resisting the temptation to apply perceived stereotypes. Another temptation to be resisted is to assume that all members of the community think and conduct themselves like the judge and share the same values and moral imperatives. I underline at this stage that I am here speaking of the role of the judge in drawing inferences as to the relationships in this area of law from overt conduct including statements. I am not referring to the accepted community standards mentioned by Ormiston J in the passage from Collicoat v MacMillan which I have set out above. It was common ground before me that questions as to what is right and proper in that context fall to be determined by reference, not to the mores of a section of the general community, but by reference to the standards of the community as a whole.
25 I turn now to consider the various matters listed in s. 91(4) having regard to the underlying standard of moral duty or obligation of the deceased.[9] I shall concentrate on those which have particular relevance to the circumstances of the present case.
26 As to the relationship between the deceased and Mr Bentley, I have concluded that he had an abusive paedophilic relationship with the younger man over a period of eight years from 1969. After a break of some four years, a relationship with sexual aspects existed between them and this continued over the last 20 years of the life of the deceased. It was a relationship of two close friends with activity of a sexual nature occurring between them from time to time. I accept that from Mr Bentley's point of view, it was a loving relationship: he loved the deceased. The deceased derived from Mr Bentley assistance in the maintaining of his garden, motor car and odd jobs and he doubtless enjoyed the younger man's company. They went sailing together for as long as the deceased was able. The last entry in the log of the deceased's yacht Harmony shows that the deceased did this as late as April 1999. It also appears that other men also did this. Mr Bentley agreed that work at Rae Street was performed by Patrick Molloy, Malcolm McLeod (a beneficiary), Ian Stewart and Paul Harris (a beneficiary) and by persons whom he referred to as Ailsa, Ray Nelson, Angus and Betty. The April 1999 entry in the log of the Harmony shows that there were arrangements for the deceased to sail with persons described as Paul and Mark as well as with Mr Bentley. I am confident that counsel for the plaintiff is correct when he submitted that the relationship between the deceased and Mr Bentley provided also enjoyment for the deceased and enhanced his quality of life. This enhancement was provided, too, by the contributions of the many persons who frequented Rae Street.
27 It was, in my assessment, a relationship, but not an exclusive one, of mutual friendship and, perhaps, one of mutual love. From time to time it found a sexual expression in the sense which I have described. It was a relationship which was important for the plaintiff, particularly when he was experiencing difficulties in his marriage, his work, his health and in financial matters. It was probably important, too, for the deceased, although the evidence shows that he had other homosexual relationships and that the plaintiff accepted this at the time. It would seem that, as the older and more comfortably off partner, the deceased was the dominant party. Acknowledging the dangers of transposing from the homosexual to the heterosexual, I would liken this relationship to be akin to that between a man and a close woman friend. I do not refer to the image of a man with a kept mistress or even of a man who engaged in intermittent dalliance with a woman; the relationship here was based on a close and loving friendship with an underlying sexual element which surfaced from time to time. It is not surprising that the deceased in this case acknowledged this by making a modest provision for his friend in his will. It is not surprising that he expressed an extra testamentary intention that his friend should have the yacht Harmony where they had shared happy times together.
28 As will appear, I am not, however satisfied that, from the perspective of the deceased, the relationship was one where he did or ought, in his lifetime, to have assumed a responsibility to provide support for the younger man, having regard to the statutory criteria. It was not one which can be equated to that of a domestic partner or that of a father to a son, even making allowances for the difference between these relationships and a homosexual relationship.
29 Some point was made in this context of the abusive origins of their relationship. Reference was made to the opinion of Dr Dunn that the present depression and anxiety of the plaintiff which renders him unable to work is a result of this abuse. The doctor told me that he referred the patient to a clinical psychologist in Frankston, Dianne McGreal. I was told by counsel for the plaintiff at the commencement of the trial that his client was that day having a consultation with Ms McGreal and that it was expected that she would be producing a report and, presumably, would give evidence. In fact nothing of the kind eventuated. The only evidence linking the earlier abuse with the present depression and anxiety of the plaintiff is that of Dr Dunn, and he accepted that factors such as the marital difficulties of Mr Bentley his difficult financial circumstances and his various accidents played a role in his psychological condition.
30 Counsel for the plaintiff accepted that jurisdiction under Part IV cannot be used to grant compensation to a person, like the plaintiff, who has been wronged by the deceased. What he did submit was that the wise and just testator, looking back over his lifetime would be mindful of what he had done to the young vulnerable life which had come into his hands long ago and what were the consequences of the abuse he made of it. Such a testator would or, in accordance with accepted general community standards, should feel a moral obligation to provide the other with a place of refuge where he might find healing or a future life - a life which had been denied him by the misconduct of the testator
31 It is here that one must be cautious of the concept of moral obligation. Doubtless on his deathbed the wise and just testator might be encouraged to see as his moral obligation to hold out a hand of friendship to those whom he had wrongfully rejected; a hand of forgiveness to those who had wronged him; and to make good, if this be possible, any damage which he has caused to another in his lifetime. It may be that the general community would applaud his decision to make provision in his will for such a person by way of atonement. But this is not the role of Part 4 of the Administration and Probate Act 1958. As Callaway JA was at pains to emphasise in Lee v Hearn[10], "the real issues are not morality as such, but personal autonomy and individual freedom". Traditionally, the law has acknowledged that this freedom might, in certain cases, have to give way to the duty to have regard to one's responsibilities towards certain family members and, since the legislative amendment, to others. And so, the statute has no role to play where the responsibility is said to arise only from some failure to recompense a person for services rendered[11] or to compensate some person only because he or she has suffered loss or hurt from some wrongful act of the testator. The law provides other remedies for this. This is not to say that these matters will never be relevant: they may be properly taken into account in connection with or to establish the relationship which might give rise to the responsibility to make provision; it is just that alone, they will not suffice. They may also have a bearing on the second or third questions which s. 91 raises.
32 The evidence that the present position of the plaintiff, psychological, domestic and financial, is a product of the early misconduct to which he was subjected is sparse. I am not satisfied that the causal connection has been made out. I do not, however, accept the submission put on behalf of the defendant that the resumption of an adult relationship in 1981 amounted to a forgiveness by Mr Bentley of what had gone before so as to require that it be put to one side for present purposes. The relationship of the adult plaintiff with the deceased carried with it the vestiges of the earlier abuse, but it appears, on the surface at least, to have its own life and its own nature which I have described.
33 The remaining matters listed in s. 91(4) play a far less significant role in this case.
34 The relationship between the deceased and the substantial beneficiaries is that of family members. The will was made at a time when the two sisters were alive and it is clear that the deceased was concerned to ensure that they had the family home and collectively one-half of the residue to support them. Following their predeceasing the testator, their shares passed to the nieces and nephew who received in addition a quarter of residue in their own right. It seems that relations between them and their uncle were good but that their contact with him was limited, if only by reason of the fact that two of them lived in regional Victoria. The moral obligation of the deceased towards them arose by the blood relationship; it is not much more than that they were his only surviving relatives.
35 The net value of the estate, of which $975,000 represents the Rae Street property, is $921,000. I put to one side the incidence of the plaintiff's own legal costs which are estimated at about $25,000. The case was presented on the basis that the entire estate was worth $1.07M and that, of this, the residue represented about $400,000 and that, after costs (not including the plaintiff's costs) were deducted, residue would amount to about $220,000. I am not entirely confident that this is correct, but I proceed on this as the agreed basis for the purposes of the case. The share of each of the friends, including the plaintiff, on this basis would be little more than $17,500. On this basis the nieces and nephew might receive about $250,000 each.
36 The financial resources and earning capacity of the plaintiff are meagre. He has a psychological disability. The evidence shows that he is a man of 45 years divorced with two children. I was not told what support arrangements are in place for the benefit of his ex-wife and the children. He is unemployed. According to Dr Dunn, he is incapable of working by reason of his psychological condition. It does appear that he has trade skills and is capable of doing odd jobs or other work. He has no assets other than certain property he received from the deceased or the executors. This comprises the yacht Harmony which is valued at $2,000, the caravan where he used to stay at Rae Street, a 1980 Toyota sedan and a 1980 Toyota Hiace. These are of no practical value.
37 I place no weight on the contributions of the plaintiff, otherwise than for value, in building up the estate or in contributing to the welfare of the deceased. Likewise, benefits passing from the deceased to the plaintiff are of no relevant consequence. The deceased did not maintain the plaintiff nor did he assume a responsibility to do so. No other person has a liability to maintain the plaintiff.
38 I make no finding as to any relevant aspect of the character and conduct of Mr Bentley or of any other person.
39 No matter was placed before me as relevant other than those to which I have referred.
40 I conclude from all of this that it has not been established that Mr Bentley is a man for whom the deceased had a responsibility to make provision in his will. That he did make provision is an indication of his love for his friend and a mark of his generosity towards him.
41 The application will therefore be dismissed.
[1] Collicoat v McMillan (1995) [1999] 3 VR 803 at 815-8 per Ormiston J.
[2] Re Allen; Allen v Manchester [1922] NZLR 218 at 220, per Salmond J.
[3] [1999] 3 VR 803 at 818 [43].
[4] Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270 at [5], per Callaway JA. See too, at [53], per Batt JA and at [57], per Buchanan JA
[5] [2004] VSCA 51 at [12], Winneke P, concurring at [2].
[6] See, too, Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 at [13], per Chernov JA.
[7] [2004] VSCA 149; (2004) 10 VR 69 at [41]
[8] Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270 at [8], per Callaway JA.
[9] See Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 at [41] per Nettle JA.
[10] [2005] VSCA 127; (2005) 11 VR 270 at [6].
[11] Valbe v Irlicht [2001] VSC 53 at [103], [109] per Gillard J.
Bentley
Brennan; Re Bull
(2005) 11 VR 270
(2004) 10 VR 69