Plaintiff v Defendant

1 Donald John O'Henley died on 5 October 2007 in Melbourne. According to his death certificate, the cause of his death was metastatic cancer which he had suffered for some weeks. It also records a condition of alcoholism, which he had suffered for some years. He had been admitted to hospital a fortnight or more prior to his death and on 24 September 2007 his condition was sufficiently serious for the hospital to have called to his bedside the person whom he had named as his next of kin. This was the defendant, the eldest of his three sisters, Catherine Robertson, who was then living in England.

2 When she arrived in Melbourne on 26 September, he was very ill. He requested her to collect from his home an unexecuted will which he had prepared himself some time previously. It seems that a solicitor, Michael Vuckovic, prepared a will to the same effect, and this document, as well as the handwritten version, was executed by the deceased on 3 October 2007 in the presence of Mr Vukovic and another person. It is not suggested that in so doing the deceased lacked testamentary capacity.

3 By his will, Mr O'Henley appointed his sister, Mrs Robertson, as sole executor and sole beneficiary of his estate, whose present value is estimated, after payment of liabilities, at approximately $750,000.

4 During his lifetime, Mr O'Henley had, in 1970, become the domestic partner of Jessie Lesley Quinn and this relationship continued until 2001, when she died. Ms Quinn had a daughter who had been born in Scotland in May 1965 to another man. This is the plaintiff, Christine Isobel Quinn, who is now 44 years of age. The plaintiff seeks provision from the estate of the deceased pursuant to Part IV of the Administration of Probate Act 1958.

5 The evidence of the plaintiff was that she was in effect a stepdaughter of the deceased, and that they had for nearly 40 years enjoyed the relationship of father and daughter. What is puzzling is that upon his terminal illness, the deceased did not give her name to the hospital as a person to be notified and that he did not make provision for her in his will. Mrs Robertson said that her brother said to her of the plaintiff, that "she is not my family" and that they had had a serious falling out. There was, however, no admissible evidence to support this latter assertion. Indeed, the plaintiff denied that any falling out had occurred.

6 Perhaps as a consequence of the fact that the dealings of the deceased with the plaintiff and the defendant were independent, there was little evidence contradicting that given by each of them. Moreover, there was little challenge in cross-examination to the evidence of these witnesses, or to that of witnesses called to support them.

7 I accept the evidence of the plaintiff that she left school at age 13 and put her earnings into the household which comprised her mother, Lesley, the deceased and herself. I accept that they lived together as a family until 1999, when she, the plaintiff, then aged 34, left to live with her present partner and to have their child, Jessie. Lesley continued to live with the deceased, notwithstanding the times she was hospitalised in 2000 and certain periods where she stayed with her daughter for medication purposes. As I have mentioned, she died in 2001, and thereafter the deceased lived alone.

8 I accept that the plaintiff visited the deceased regularly after 1999 and that he was thought of as her father and the grandfather of her child. A feature of his life for many years was his drinking. The plaintiff said that the deceased drank heavily and that he had a drinking problem. She said that he was able nevertheless to hold down a job until he retired. She said too that in his later years he used to drink sherry which he purchased by the flagon.

9 It is unnecessary that I descend to further detail, as much of the evidence from both sides was uncontradicted and, especially, as the existence of an obligation to make some provision was, not surprisingly, not seriously in issue. The position adopted by the defendant was that she had a responsibility to ensure, so far as the law allows, that her brother's testamentary wishes were carried out.

10 The deceased was born in Scotland in 1945, the eldest of four children. His three younger sisters are still alive. The eldest of these, Mrs Robertson, maintained contact with him notwithstanding that he had left home to join the Merchant Navy upon leaving school and had in 1968 emigrated to Australia. She visited him in Australia in February 2000 and again in 2007 shortly before his death. They communicated over the years regularly by post. Mrs Robertson's daughter Kirsteen Fiona Cook also sought to pay him a visit at Easter 1999 when she was staying in Melbourne.

11 There was some dispute about the events of these visits of which all but the last occurred when the plaintiff's mother was still alive. Ms Cook went to the home of the deceased and was turned away by the plaintiff. The plaintiff told the visitor that the deceased was drunk and unconscious and that he was frequently in this state. Ms Cook said too that the plaintiff appeared hostile to the deceased. In response the plaintiff said that she and her mother were then living in the house and she agreed that she denied Ms Cook entry for the reason given. She did not dispute the hostile statements attributed to her at that time.

12 The evidence of Mrs Robertson's visits was to the effect that the mother of the plaintiff was not living as the wife of the deceased and that he denied having a drink problem. Having considered this evidence in all the circumstances of this case I remain satisfied that the two were in fact living together as husband and wife albeit that Mrs Quinn was very ill. I am satisfied too that he did have a drink problem.

13 Another matter which may be significant is that the deceased was the beneficiary of a number of bequests from family members in the UK. Mrs Robertson forwarded to him sums totalling about $18,000 over the years. The significance of this is that he might well have considered this to be family money.

14 I turn now to apply these findings to the law as is set out in s 91 of the Administration and Probate Act 1958. I am satisfied that the plaintiff is a person for whom the deceased had a responsibility to make provision. I find that she was in the position of a daughter to him. She lived with him in this way for nearly 30 years, and in the subsequent eight years until his death she visited him and provided him with moral and practical support as a daughter might be expected to do. He, despite his alcoholism and his reclusive nature, appears to have treated her as a daughter and the child as a granddaughter.

15 Nevertheless the deceased appears to have drawn the line between those who were family and those who were not blood relations. In the context of the terms of his will this attitude may have been fortified by the fact that part of his assets comprised family money, that is money which he received by bequests from his blood relations in the UK. For my purposes this does not detract from my conclusion that the deceased has a responsibility to make provision for his stepdaughter. This was not only because of their relationship but because, in a way which was significant for her and which may have been useful for him, she made financial contribution to the household when she was part of it. Moreover the need that she do so required that she leave school at an earlier age than might otherwise have been the case. The plaintiff struck me as an intelligent woman who might well have profited from a longer time at school.

16 A further consideration is her need; the plaintiff is not a well woman and her partner is afflicted with a serious and debilitating neurological condition which is likely to progress. In these circumstances the ability of each of them to earn income is very much diminished and their expenses are, and are likely to be, considerable.

17 Section 91(4) requires me to have regard to a number of these matters in determining the first question. One of them is as to the obligations and responsibilities owed to the beneficiaries; in this case, Mrs Robertson. She has not asserted any particular call upon the bounty of the deceased. What little evidence there is does not cause me to conclude that she or her family suffer any particular financial or other need now or in the future, or any physical or other disability.

18 The second matter to be considered is whether the will of the deceased does not make adequate provision for the proper maintenance and support of the plaintiff. The will of course makes no provision for her so that I have little difficulty in concluding that this requirement is satisfied.

19 The third matter for me is to determine the amount of provision which I should order. Section 91(4) makes it clear that I must have regard to the matters I have referred to already. A further consideration is the size of the estate. My task in all these circumstances is not to rewrite the will of the deceased as I might consider appropriate. His assets are for him to dispose of as he sees fit, subject always for the court to modify his dispositions where this is required to satisfy the legal requirement that he make adequate provision for those to whom he had a responsibility to do so. And whether he had done so, will, in a case such as the present, also require an examination of his responsibility to the beneficiary to make a bequest in her favour.

20 Over the near century that family provisions have been in place it has been seen as an indication of such responsibility that the object is a close family member, a wife or child. The fact that the legislation is now cast in wider terms does not detract from this; it simply means that a wider class of people may qualify. Nor in applying legislation which acknowledges the fact that a domestic partner may be treated as a spouse and which puts aside notions of illegitimacy, should I dwell long on the fact the mother of the plaintiff was not married to the deceased. I must look to the reality of the relationship between the contending parties and the deceased.

21 When I consider this I see the plaintiff as an adult stepdaughter of the deceased, in relatively poor health and with a sick partner and with uncertain income prospects. Without attempting anything in the nature of an accounting exercise, she is faced with considerable expense. An appropriate provision for her would seek to remove as far as possible the financial aspects of her situation and to give her, if possible, resources for respite or relaxation.

22 The net estate after payment of all expenses, including legal costs and the costs of Mrs Robertson and her husband travelling to her brother's bedside in 2007, is approximately $750,000. The wise and prudent testator would have given the greater part of this to the woman who is in effect a daughter to him.

23 In all the circumstances, the proper provision for her is a legacy of $500,000. This is a sum which may be used to pay out the liability on the house which she and her partner own, and to set up a fund to provide some support for her and to supplement a pension and any other income which she may receive.

24 I will make an order therefore to the effect that the will be read and construed as giving to the plaintiff such a legacy, but without legacy interest. I invite counsel to bring in a minute of an order to that effect. I will hear counsel as to costs.