Plaintiff v Defendant

2 By Originating Motion dated 21 October 2014, the plaintiff, Marilyn Semmler, seeks an order for further provision out of the deceased's estate pursuant to Part IV of the Administration and Probate Act 1958 ('the Act'). The Will appointed the deceased's former wife, Pamela Christine Todd, as executrix. Vincent Norman Todd, the deceased's brother and alternative executor, obtained a grant of probate on 24 July 2014.

3 The Will left everything to Pamela Todd, his former wife, provided she survived him for 30 days. The deceased and Pamela Todd divorced, so the gift did not take effect. Clause 4 of the Will states that if the deceased's wife fails to survive him, the estate is to be held on trust for to his children that survive him and attain the age of 18 years.

4 The deceased had four children. Three of the children (Peta Todd, Chantal Todd and Janelle Maas) were from his marriage to Pamela Todd. The fourth child, Lachlan Todd, was from his relationship with the plaintiff.

5 This is a small estate. The inventory of assets and liabilities sworn 26 March 2014 showed a net estate of $484,711.30. By 13 March 2015, the affidavit of financial position showed a net estate of $396,362.85, which included the defendant's legal fees and disbursements of $6,420. On 4 September 2015, the affidavit of financial position showed a net estate of $367,936.17 which included the defendant's legal fees of $35,390.70.

6 The deceased had an amount of superannuation which has not been distributed. The amount is approximately $397,000.[1] The trustee has not yet made a determination of the recipient of the money. At the time of the hearing, the only two applicants are the plaintiff and her son.

a) Marilyn Joyce Semmler, sworn 17 October 2014 and 16 March 2015;

1. Vincent Norman Todd, sworn 5 February 2015, 13 March 2015 and 4 September 2015. The affidavits dated 13 March and 4 September 2015 are affidavits of financial position;

1. Chantal Todd - outline of evidence dated 20 August 2015; and
2. Janelle Maas, sworn 26 August 2015.

9 The issues identified in a joint document prepared by the parties in advance of setting down for trial in accordance with the directions of McMillan J on 8 May 2015 were as follows:

1. Relationship (nature and length). The plaintiff says the relationship created a moral obligation. The defendant says there is no moral obligation.
2. The financial position and competing needs. The plaintiff asserts need and that she has been left with a large mortgage near the end of her working life and a child presently dependent on her. The plaintiff submits that the deceased's children from his marriage to Pamela Todd are all adults and were no longer dependent on the deceased.

10 The plaintiff's claim is made under Part IV of the Act, which confers jurisdiction on the Court to order provision out of the deceased person's estate, in circumstances where the deceased's will does not make adequate provision for proper maintenance and support of a person, for whom the deceased had responsibility to provide.[2]

11 Under s 91(4) of the Act, an application for provision requires determination of three questions:

• whether or not at the date of his death the deceased had a responsibility to make provision for the claimant's proper maintenance and support;

• whether or not the distribution of the estate of the deceased person makes adequate provision for the proper maintenance and support of the person;

• if not, the amount of provision which should be made, and any other matter relating to an application for an order.

12 In answering each of those questions, s 91(4) requires the Court to have regard to:

(e) Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

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

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

(h) financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

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

(j) the age of the applicant;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or to the family of the deceased;

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

(m) whether the applicant was being maintained by the deceased person before the person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

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

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

(p) any other matter the Court considers relevant.[3]

13 In deciding whether to exercise its limited jurisdiction to order provision from the estate of a deceased person, courts have given considerable weight to freedom of testation. It is only if the deceased has failed to make adequate provision for the proper maintenance and support of the applicant, that an order interfering with the terms of a will is justified. The test which was traditionally applied is whether a 'wise and just' testator would have considered that he or she had a moral duty to make further provision for the applicant.[4] In Collicoat v McMillan,[5] Ormiston JA said that:

...the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances.[6]

14 In Schmidt v Watkins,[7] Harper J said:

...a duty to provide in one's will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor and creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. Generally speaking, however, a "domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner" would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility (although, of course, in the particular case that responsibility might not arise or might already have been discharged).[8]

15 In Blair v Blair,[9] Chernov JA said that notwithstanding the requirements of s 91(4):

...it is probably apt to describe the obligation of the testator that forms the subject of the inquiry under sub-s (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 and Grey v Harrison. Thus it is clear enough that the 'responsibility' of which subs (1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, subs (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 of each of the 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.[10] (citations omitted)

16 In Blair,[11] Chernov JA said in relation to how ss 91(1) and 91(4) should be applied in deciding whether the jurisdictional requirements for the Court to exercise its discretion were satisfied:

It is apparent, therefore, that there is likely to be a substantial overlap in the matters that the Court needs to take into account when determining whether the two jurisdictional requirements have been satisfied. Such matters are not, however, identical. For example, when considering whether the testator had 'responsibility' to make provision for the claimant, the terms of the disposition will be largely, if not wholly, irrelevant because the essential inquiry will be concerned with the relevant circumstances that occurred before the date of the death of the testator. On the other hand, since the focus of the enquiry under sub-s (3) is on the adequacy or otherwise of the provisions of the will, its terms will obviously be of critical importance to the resolution of that issue. But, at least in one important aspect, there is commonality in approach that must be adopted in the analysis of the two different jurisdictional questions raised by the relevant sub-section. The inquiry under each necessarily involves, as I have said, consideration of the relevant factors specified in paragraphs (e)-(p) of s 91(4).[12]

17 Neave JA considered that whether a testator had the duty to make adequate provision for the proper maintenance and support of an applicant under Part IV is ultimately a value judgment.[13] Her Honour went on to say:

The burden of persuading the Court that the deceased had that duty lies on the applicant. However the circumstances in which a testator will be regarded as having a moral duty to make adequate provision for the proper maintenance and support of another person are not static, but evolve in accordance with prevailing community views and attitudes.[14]

18 If the plaintiff is successful in establishing that the deceased had a responsibility to make provision for her proper maintenance and support, then the issue to be determined is the amount of provision. The time for determining how much provision should be awarded is at the trial when the Court can consider the plaintiff's position in light of any events which have occurred since the testator died, provided they were reasonably foreseeable.[15]

19 In Pontifical Society for the Propagation of Faith v Scales,[16] Dixon CJ said in relation to the concept of 'adequate' and 'proper' that:

'Adequate' and 'proper' in particular must be considered as words which must always be relative...What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them.[17]

Consideration of the criteria under s 91 of the Act

Section 91(4)(e) Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship

20 The plaintiff met the deceased in 1992. At the time he was living with his wife and daughter Janelle in Vautier Street, Geelong. The deceased was a police inspector working at the St Kilda Police Complex and the plaintiff was a prison officer working at the Melbourne County Court and Pentridge.

21 By 1992 the deceased's relationship with his wife, Pamela Todd, had broken down and the deceased had moved in with a fellow police officer. Following this, the deceased and plaintiff lived in a number of residences together over a number of years. Initially, when they first met, the plaintiff lived in 160 Sparks Road, Norlane, with her three children, Matthew, Nathan and Lisa. The deceased and plaintiff also lived together at Landy Street, Horsham, Glengate Street, Hamlyn Heights.

22 The plaintiff moved into a property in Minerva Street in 1996, which was the same property that the deceased had moved into in 1992 with a fellow police officer. In crossexamination the plaintiff's evidence was that in 1992 and 1993 she and the deceased lived 'intermittently' together.[18]

23 Sometime after 1994 the deceased and plaintiff moved to Horsham where they rented a property. Lisa and Matthew moved with them but Nathan remained in Geelong.

24 On 24 September 1996, the plaintiff and deceased moved to 46 Citrus Avenue, Horsham, where Lachlan Todd was born on 22 November 1996. The plaintiff went on maternity leave from Corrections Victoria. The plaintiff used her pay out from Corrections Victoria as a deposit to buy the 46 Citrus Avenue property.[19]

25 The Citrus Avenue property in Horsham was subsequently sold and a property at 26 Bostock Avenue, Manifold Heights, was purchased in 1997. The latter property was not purchased in the plaintiff and deceased's joint names.[20] It was subsequently sold in 1998. On 28 July 1998, the deceased assaulted the plaintiff's daughter, Lisa Emanuel. The plaintiff's evidence is that after the assault she and the deceased lived apart for a while.

26 The plaintiff deposes that her brother, purchased a property for her at 366 Autumn Street, Herne Hill. In November 1999, the deceased moved to South Valley Road, Highton, to live with Pamela Todd, while the plaintiff lived at the Autumn Street property.

27 The deceased retired from the police force in August 2000. In October 2000, the deceased took over the leasehold of the Ocean Grove Motor Inn at Ocean Grove. The plaintiff and deceased lived at the motel together. The plaintiff deposes that she 'worked hard' in the motel and that it was a financial success for the deceased.[21]

28 The deceased sold the leasehold approximately 12 months later and the plaintiff and the deceased moved to Nalingil Avenue, Hamlyn Heights. The deceased worked at the Barwon Prison and the plaintiff at the Melbourne Custody Centre. The plaintiff then transferred to the Maribyrnong Immigration Detention Centre in 2001. In late 2001 the deceased purchased 144 Anakie Road, Bell Park.

29 In 2009, the deceased and plaintiff purchased a property at 1 Rigel Road, Lara, in joint names and moved into the property. On 24 July 2009, the deceased divorced Pamela Todd. That same year, the plaintiff and deceased travelled to the USA with the plaintiff's children.

30 In March 2010, the deceased assaulted their son Lachlan and the deceased moved to Anakie Road where he lived with Pamela Todd. The plaintiff asked the deceased to leave the property after the assault on Lachlan and the deceased and plaintiff did not live together again.

31 The plaintiff's evidence is that even after the deceased moved back to Anakie Road and lived with Pamela Todd, she kept very close contact with him and would visit him at the property. They continued to have a sexual relationship even though he had moved out of the Rigel Road property.[22] Pamela Todd's evidence is that following the incident with Lachlan, the deceased stated to her that he had had enough of the plaintiff and Lachlan. In her affidavit dated 5 February 2015, Pamela Todd deposes:

... The deceased stated to me that Lachlan had grown up and he just wanted to get away from the plaintiff. Whilst the deceased and I resided together at 144 Anakie Road, Bell Park for the last 18 to 24 months of the deceased's life, the deceased often would not answer his phone when the plaintiff called. When the plaintiff came around to the Anakie Road property, the deceased would often not answer the door to greet her. I was informed by the deceased and believe that he and the plaintiff did meet occasionally during the day for a coffee and kept in contact for the sake of their son Lachlan. I believe that the plaintiff and deceased maintained contact for certain events that the deceased was assisting Lachlan with, such as Lachlan's debutante ball and Lachlan's walking of the Kokoda Trail. [23]

32 The evidence is that the plaintiff and the deceased did not live continuously together for 21 years. In crossexamination, the plaintiff's evidence was that she lived with the deceased intermittently in 1992 and 1993.[24] They lived apart for periods of time, including the following: in 1996 when the deceased lived with his wife[25], from November 1999 to October 2000[26], eight years between 2001 and 2009, and between 2010 (the date of the incident with Lachlan) and the date of the deceased's death on 22 January 2014.

33 In relation to the period of time at the Ocean Grove Motor Inn, the evidence is that the plaintiff worked there for less than 12 months before returning to work as a prison officer. Pamela Todd's evidence is that she and her sister-in-law also worked at the motel cleaning rooms in this period. In relation to the period when the deceased moved to Anakie Road with Pamela Todd, Ms Todd deposes that:

The utility bills for the Anakie property were in the deceased's name however, I would often contribute towards their payment. I would also buy groceries for both of us and collect the deceased's prescriptions. Further, the deceased and I shared car expenses. I also recall the road trip we made to Adelaide for my niece's 40th birthday. We drove together and towed the deceased's caravan.[27]

34 Ms Todd deposes that the deceased discussed with her his plans to travel around Australia and to move to Darwin to live. Her evidence was that the deceased had made plans to buy a block of land near his daughter, Peta, in Darwin. Ms Todd was not aware that the deceased's plans included the plaintiff.[28]

35 The plaintiff's evidence is that she had not heard the deceased speaking of living in Darwin and that he considered the cost of living and purchasing property in Darwin was not something in which he was interested.[29]

36 The plaintiff's evidence is that she and the deceased had discussed marriage numerous times and that it was raised as late as December 2013 in a text message.[30]

37 The plaintiff's evidence was that when the deceased became unwell she cared for him and was actively concerned about his health.[31] When the deceased was admitted to the Geelong Hospital, the plaintiff was stated to be his next of kin and on a number of occasions she took him to hospital when he was ill.[32]

38 The plaintiff submits that she was the deceased's domestic partner, that they were in a relationship for 21 years after meeting in mid-1992 and the relationship continued until the deceased passed. The couple's son, Lachlan, supports the plaintiff's contention.[33]

39 The plaintiff submits that she was in a de facto relationship with the deceased, pursuant to s 4AA(5)(b) of the Family Law Act 1975, whereby a de facto relationship can exist even if one the persons is legally married to someone else.[34] The plaintiff disagrees with the defendant's submission that the plaintiff was an 'exgirlfriend' of the deceased, and submits that it would 'at least be a de facto relationship and at one time would have been considered as an unregistered domestic partner'.[35]

40 The plaintiff's daughter, Lisa Emanuel, deposes that the deceased moved in and lived with her mother and was a member of the household from the time she was in early primary school.[36] Lisa states that her mother was in a relationship with the deceased from when he met the plaintiff until he died.[37] She deposes that at the time they lived in separate residences because the deceased could not live 'amicably with either me or Lachlan'.[38] Lisa states that her first child, Amirah, born in 2011, refers to the deceased as her grandfather and has a vivid memory of him.[39] The plaintiff's son, Matthew Lewin, also supports the plaintiff's contention and deposes that he believed the deceased was his mother's partner from the time they met until he died.[40] Matthew states that the couple moved around due to job pressures and relationship pressures due to the issues between the deceased and Lisa and Lachlan.[41]

41 The defendant submits that the plaintiff and the deceased had an on again/off again relationship and that the plaintiff was the deceased's domestic partner for a period and the deceased's girlfriend for a period. The defendant submits that at the relevant time, namely the death of the deceased, the plaintiff was not a domestic partner or de facto spouse, but 'could most accurately be described as an exgirlfriend of the deceased', as they had not lived together for four years.[42]

42 The defendant submits that the 'length, quality and nature of the relationship has been overstated by the plaintiff'.[43] It is submitted they were not in a continuous domestic relationship for 21 years and that the two had not lived together for approximately two years prior to the deceased's death. The defendant submits that as an exdomestic partner or girlfriend, the plaintiff is not in an established class of persons for whom the deceased had an obligation to provide.[44]

43 Peta Todd, daughter of the deceased and Pamela Todd, says that the deceased did not continue his relationship with the plaintiff until his death and rather, lived with Pamela Todd for the last two years of his life.

44 The deceased was married to Pamela Todd from 4 August 1973 until their divorce on 24 July 2009. Pamela Todd's evidence is that she was dependent on the deceased at the time of his death.[45]

45 Pamela Todd disputes the plaintiff's assertion that she was in a relationship with the deceased for 21 continuous years.[46] Based on her observations and discussions with the deceased, Pamela Todd states that the deceased and the plaintiff were in an 'on and off' relationship from the time they met until the deceased left the 1 Rigel Road property in 2010, following the incident with his son, Lachlan.[47]

46 Pamela Todd's evidence is that the argument between the deceased and his son Lachlan 'was a major turning point in the friendship between the deceased and the plaintiff'. After the altercation, the deceased and the plaintiff went their separate ways and kept in contact 'for the sake of their son, Lachlan'.[48]

47 With regard to the living arrangements of the plaintiff and the deceased, Pamela Todd's evidence is that they only lived together in the Nalingil Avenue, Hamlyn Heights property for a short period, and then the plaintiff left the deceased and moved to 366 Autumn Street, Herne Hill, whilst the deceased remained at Nalingil Avenue until he purchased the Anakie Road property.[49]

48 Vincent Todd's evidence concurs with Pamela Todd's recollection of these living arrangements, and his evidence is that he lived at the Nalingil Avenue address for a short time during the same period.[50]

49 Vincent Todd's evidence is that the plaintiff and the deceased were not in a relationship for 21 years and he did not believe it was a serious companionship.[51] Vincent Todd deposes that the deceased only maintained contact for the sake of his son Lachlan and that he told his brother that he would never marry the plaintiff nor live with her on a constant basis.[52]

Section 94(4)(f) - any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries

50 The plaintiff submits that there were no obligations of the deceased to the plaintiff apart from the obligations that arose from a relationship and a responsibility to pay child support for Lachlan.[53] It was submitted that there are no obligations to any of his adult children.[54]

51 The defendant submits that the deceased was not responsible to maintain the plaintiff, in contrast to the natural recipients of the estate, that is, the deceased's four natural children. The defendant submits that the plaintiff is not a person for whom the deceased had a responsibility to provide.

Section 94(4) (g) - The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject

52 This is a small estate. The estate was initially valued at $486,527.09 with liabilities of $1,815.79. However, the net value of the estate is now $367,913.36 which includes the defendant's legal fees of $35,390.70, leaving the net value of the estate in the order of $300,000. The plaintiff's costs are said to be in the total of $55,000 and the defendants estimate their total costs to be $66,000.[55] It appears $33,000 has been paid, leaving approximately $88,000 to be deducted from the sum of $367,000. Accordingly, the net value of the estate if both parties' costs were to be deducted from it, would be approximately $280,000.

53 The plaintiff submits that to purchase the Rigel Road property, the deceased and plaintiff obtained a loan from the Commonwealth Bank of Australia, secured by a mortgage over that property. It is submitted that if there was a default on the loan then the property would be used as security for the loan. It was submitted that the loan remains in the deceased's name and although not listed in the inventory of assets and liabilities, it would be open to the Commonwealth Bank to sue the estate to pay out the balance of the mortgage if the mortgage was defaulted upon. There was no evidence led before the Court in relation to this issue. The mortgage is not in default.

Section 91(4)(h) The financial resources (including earning capacity) and the financial needs of the applicant, or any other applicant and/or beneficiaries

54 The plaintiff is 57 years old. She is currently employed by Serco at the Maribyrnong Detention Centre. At present the plaintiff earns approximately $90,000 per annum before tax.[56] The plaintiff owned a laundromat business since 2005 at Pakington Street, West Geelong which was sold for $63,000.[57] The plaintiff owns 1 Rigel Road, Lara. She estimates the value of 1 Rigel Road at $350,000. There is a mortgage to the Commonwealth Bank of Australia over the property of $257,000.[58]

55 The plaintiff has superannuation of $106,000 to $108,000 and $6,000 in savings in the bank together with the contents of her home and a motor vehicle. The plaintiff estimates that she has expenses of approximately $4,000 per month.

56 The plaintiff's evidence was that her son, Lachlan, has recently obtained part-time employment of four hours per week at Direct Aluminium in Corio as a warehouse worker.[59] At the time of the hearing, Lachlan was on probation for a month. The plaintiff's evidence is that she is still in part supporting Lachlan.

57 The plaintiff deposes that Lachlan has ADHD and that this affects his ability to concentrate and take instruction. In cross-examination, the plaintiff said that Lachlan is now doing well however he still finds it hard to be in a crowd, noise affects him and the plaintiff is unable to give Lachlan a couple of instructions because he 'just - the first one he may get, the rest he doesn't'.[60] Lachlan has completed his Year 12 VCE. He takes no medication for his ADHD.

58 Peta Todd is 43 years old, she has no dependent children. Peta works as a primary school teacher and her current gross income is $87,757 per annum. Peta's assets are as follows:

(a) a property at 10 Kornock Road, Livingston, Northern Territory valued at approximately $650,000;

In cross-examination Ms Todd's evidence was that the 10 Kornock property is owned by four proprietors. Ms Todd and her husband owned 60 per cent and the other two proprietors own 40 per cent.[61]

59 Ms Todd's liabilities are a mortgage on 10 Kornock Road of approximately $310,000 and an anticipated family law settlement of approximately $250,000. It is not clear how Ms Todd has arrived at the sum of $250,000 other than it appears she wishes to give that sum to her former partner in order to complete the settlement. There are no settlement proceedings on foot and Ms Todd is hopeful that it can be resolved amicably.[62]

60 Ms Todd suffers from cervical spondylosis and has no discs between C3 through to C7 of her spine. Her condition requires a flight from Darwin to Adelaide every few months for neurological appointments which costs her approximately $800 per trip and she attends four times per year. Peta Todd does not have health insurance. Ms Todd expects that as a result of her condition she has a shortened working career and expects that she will only be able to work for a further 10 to 15 years. Ms Todd also suffers from depression and takes antidepressant medication at a cost of approximately $35 per month.

61 Chantal Todd is 40 years old. Chantal is unemployed and receives a disability pension in the sum of $780 per fortnight. From her pension the following amounts are automatically deducted:

62 Chantal does not own any real estate and has no superannuation and no savings. Chantal does not have any liabilities. Chantal has two sons who are financially dependent upon her, Thomas Alexander Todd aged 13 and Reece Dye aged 10. Thomas has been diagnosed with oppositional defiance disorder and he is on medication which costs approximately $6.10 every 30 days. Chantal's evidence is that she also takes Thomas to a paediatrician every three months which can cost between $80 and $235.

63 Chantal is on medication for manic depressive bipolar disorder and anxiety. The cost of medication is $6.10 every 30 days.

64 Janelle Maas is 34 years old. She is a single mother and has three sons who are financially dependent upon her, aged 10, 8 and 2. Ms Maas does not receive any maintenance support payments.

65 Ms Maas is currently employed full-time as an intelligence support officer at Victoria Police and receives an annual gross salary of $54,712.53. She also receives income from Centrelink in the sum of $162.42 per fortnight. Ms Maas's regular monthly expenses are:

(a) $1,540 rent (she receives $340 per month rent assistance);

(i) $300 entertainment/clothing.[63]

Section 91(4)(i) Any physical, mental or intellectual disability of any plaintiff or any beneficiary of an estate

66 The plaintiff has not deposed to any disability and says she is in reasonable health.

67 Peta Todd suffers from depression and cervical spondylosis.

68 Janelle Maas has once suffered from deep vein thrombosis but is otherwise in good health.[64]

69 Chantal is on medication for manic depressive bipolar disorder and anxiety.

70 Lachlan suffers from ADHD and was previously on Ritalin.

Section 91(4) The age of the plaintiff

Section 91(4)(k) Any contribution (not for adequate consideration) of the plaintiff to the building up of the estate or to the welfare of the deceased or the family of the deceased

72 The plaintiff used her payout from Corrections Victoria as a deposit to buy the property at 46 Citrus Avenue, Horsham.[65] This was following the couple's move to Horsham and Lachlan's birth.

73 The Citrus Avenue property was sold and the plaintiff and deceased purchased 26 Bostock Avenue, Manifold Heights in 1997. The Bostock Avenue was not in joint names.[66]

74 The plaintiff and deceased purchased 1 Rigel Road, Lara in 2009 in joint names.

75 The plaintiff's evidence is that she worked unpaid at the Ocean Grove Motor Inn at Ocean Grove in October 2009 until such time as the lease was sold. The plaintiff said that she had to do nightshift in order to be at the motel during the day and that she supported the deceased.[67]

76 Pamela Todd deposes that the deceased told her the plaintiff was receiving remuneration indirectly for working in the motel.[68]

77 Vincent Todd deposes that the motel was purchased to be the deceased's retirement business and set up his future.[69] Vincent deposes that the deceased told him on a number of occasions that the business was not going well because the plaintiff did not want to contribute and the deceased said 'it was not her cup of tea'.[70] The evidence is that the lease was sold after approximately 12 months. There is no objective evidence as to what, if any, profit was made on the selling of the lease of the motel.

78 The plaintiff admitted that she did not know the purchase price of the motel.[71]

79 The plaintiff was the primary care giver to Lachlan and has supported him.[72] The deceased paid child support spasmodically.

Section 91(4)(l) Any benefits previously given by the deceased to any plaintiff or any beneficiary

80 By survivorship, the plaintiff has received the deceased's share in the jointly held Rigel Road, Lara property.

Section 91(4)(m) The applicant was being maintained by the deceased person before that person's death, either wholly or partly, and where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

81 There is no evidence that the plaintiff was being maintained by the deceased wholly or partly before his death.

Section 91(4)(n) The liability of any other person to maintain the eligible person

82 The liability of any other person to maintain the applicant is not relevant.

Section 91(4)(o) The character and conduct of the applicant or any other person

83 Counsel for the defendant submits that the plaintiff was not a truthful witness. In particular, he submitted that the plaintiff was an evasive witness and that she did not provide accurate information in relation to her financial position, in particular, the sale of the laundromat business and the fact that debts deposed to had been paid with the moneys received from the sale of the laundromat business. Further, it is submitted that the plaintiff's evidence about her living arrangements with the deceased were opaque.

84 While I consider the plaintiff's evidence in relation to the living arrangements with the deceased was somewhat confusing, I consider that the plaintiff did give her evidence truthfully and that appropriate corrections were made to information which was incorrect in her affidavits in support.

Section 91(4)(p) Any other matter the Court considers relevant

86 There was no substantial dispute between the parties as to what the overarching test is for a settlement claim under Part IV of the Act: that is, that the reference to responsibility encompasses legal responsibility and a moral duty of the deceased towards the claimant and any other relevant person. As I have said, the test to be applied by the Court is an objective test of how a wise and just testator should in all the circumstances distribute his or her estate.

87 A domestic partner of a deceased is in a special position. As referred to earlier in this judgment, in Schmidt v Watkins Harper J said:

Generally speaking, however, a 'domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner' would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility.[73]

It is agreed that the quality of the relationship, the particular circumstances of the relationship and the length of the relationship are relevant to determining whether the provision made is adequate and the extent of any further provision that should be made.

88 Counsel for the plaintiff submitted that the matters that supported a finding that the deceased had a responsibility to make provision for the plaintiff included:

• The length of the relationship, which was 21 years, albeit they did not live together the whole time.
• There was a child, Lachlan, of the relationship.
• The deceased had a relationship with the plaintiff's other children, admittedly the relationship with Lisa was poor.
• The plaintiff would have been entitled to a family law settlement on the dissolution of the relationship. The deceased paid no child support.
• The plaintiff contributed to the deceased's wealth by working in the Ocean Grove Motor Inn and contributing her redundancy payment to the purchase of the Citrus Avenue property and paying the mortgages.
• The deceased had a volatile temperament towards the children, which led to stresses in the relationship and at times they lived apart in separate houses.
• The plaintiff had been left with a mortgage of $257,000 for the Rigel Road property which is valued at $360,000.
• The plaintiff has a minimal amount of superannuation in the order of $106,000 to $108,000 and savings of $6,000.
• The competing needs are of adult children.

89 Counsel for the defendant submits that the factors which negate the making of an order for provision for the plaintiff are as follows:

• The plaintiff has no financial need and has a high income. She has a house which was jointly owned by her and the deceased which has passed to her by survivorship. The plaintiff's meeting her monthly expenses, including a mortgage, and still has capacity to save.
• The deceased has left his estate to his four children, all of whom are in financial need.
• The estate is small.
• The plaintiff was not the domestic partner of the deceased at the date of death. They had not lived together for approximately two years.
• At best the plaintiff can be described as an ex-domestic partner or perhaps a girlfriend and is not in the class of person for whom the deceased had an obligation to provide.
• The length, quality and nature of the relationship has been overstated by the plaintiff. Even though they had a child, they lived apart for extended periods of time and the evidence reveals that they did not live together for approximately 16 years out of the 21 to 22 years.
• At the relevant time for the purposes of Part IV, being the date of death, the plaintiff and deceased had not lived together for approximately four years. At that stage the relationship can be described as that of boyfriend and girlfriend.
• The deceased had no responsibilities to maintain the plaintiff. This is in contrast to his four natural children, some of whom are in serious financial need.
• The plaintiff has not made any significant contribution to build up the estate.

90 A central issue in this case is the nature and length of the relationship. The plaintiff's evidence in relation to the duration of the relationship and the periods which she and the deceased lived together was somewhat confusing. I accept that they lived as a de facto couple at some stage. It appears that the reasons the deceased left in March 2010 was because of the incident with Lachlan and that the plaintiff asked him to leave. What is curious is that the deceased returned not for the first time to live with his ex-wife, Pamela Todd. The evidence is that from March 2010 until his death, the deceased and plaintiff continued to see each other. It was not contested that they continued to have a sexual relationship even though the deceased no longer lived in the Rigel Road property. The plaintiff had some involvement in caring for the deceased when he was unwell. The plaintiff's evidence was that they still did everything as a couple except live under the same roof. The deceased and plaintiff lived exclusively together for six to seven years.

91 I accept that at the time of the deceased's death, the relationship was simply not one of close friends or ex-girlfriend. It was something more than girlfriend and boyfriend. A critical factor for them not living together was the incident with Lachlan. The deceased had in the past also assaulted the plaintiff's daughter, Lisa. The couple kept their financial affairs separate.

92 Even though the relationship between the deceased and the plaintiff did not have the hallmarks of a de facto relationship at the date of the deceased's death, the relationship still had the character of a loving and close relationship and the plaintiff continued to see the deceased on an ongoing basis. There is no evidence that the plaintiff had formed other intimate relationships and her evidence was that they continued to have a sexual relationship and engage in everyday activities together such as watching TV.

93 Having regard to the totality of the relationship between the plaintiff and the deceased, in the context of its whole duration, supports a finding that it was a relationship which was underpinned by an emotional commitment to each other akin to that of family members, even if they did not live together. The plaintiff and deceased continued to have a sexual relationship, they saw each other on a continuous and regular basis, the plaintiff was recorded as the defendant's next of kin, they continued to talk about marriage. The deceased had assaulted the plaintiff's daughter Lisa and then later Lachlan. These are strong factors explaining why they lived separately for some periods and particularly for the last four years of the deceased's life. They were in a relationship albeit in different forms for 21 years. They had a child, bought a home in joint names, moved together to rural Victoria, shared finances and contributed financially at different times to each other. This was not a casual encounter or a boyfriend/girlfriend relationship.

94 After establishing that the nature of the relationship is such as to give rise to a moral obligation, the Court must still assess the eligibility of an applicant by determining what a just and wise testator would have considered his or her responsibility to be in all the circumstances. This requires the Court to consider amongst other things, whether there is jurisdiction to make an order, the applicant will still have to demonstrate a "need". An applicant who has no financial need has no claim to provision.[74] However, in determining what is adequate provision for an applicant's proper maintenance and support, the Court is entitled to allow for contingencies which are no more than mere possibilities, it includes present and future needs, including the need to guard against unforeseen contingencies.

95 Again the concept of need must be considered alongside any competing needs and the size of the estate. The plaintiff does not appear to have any present significant financial need. She is employed and earns approximately $90,000 gross per annum. The plaintiff has a mortgage but is able to meet her liabilities and still able to save. There was no evidence that the plaintiff intended to cease work in the near future or that there were factors that would prevent her from working. Lachlan is no longer solely dependent on the plaintiff and has a part-time job. To succeed in an application under Part IV of the Act, there must be a need shown by the plaintiff. This is a relative concept and one which has to be considered in the circumstances of each case.

96 It should be noted that the concept of need is not confined only to economic need.[75] A plaintiff does not need to show necessitous circumstances and, where circumstances permit it, a testator should go beyond merely providing for the bare necessities of life.[76] What the Court must do in making orders for provision is to make whatever provision ought to be made, having regard to the factors set out in s 91(4)(e)-(p). I accept that the plaintiff's financial position is such that she has a significant mortgage and will need to work well into the future to ensure she can maintain mortgage payments.

97 The plaintiff's position stands in contrast to that of the deceased's four natural children. The financial circumstances of the deceased's children at the time of the testator's death are relevant.[77] The children are beneficiaries under the deceased's estate. The evidence clearly establishes that they are in financial need. Chantal and Janelle have dire financial needs. Lachlan is only working four hours per week and according to the plaintiff continues to suffer from ADHD. This may make it difficult for him in the future to maintain employment. Peta is financially stretched and given her health issues, may have a limited work life.

98 The plaintiff's contribution to the estate is not sufficiently significant to outweigh the other factors. The plaintiff's contribution in relation to her efforts in the Ocean Grove Motor Inn is unclear and at most consistent with providing some cleaning services for no more than a year. She also worked in that period but it is not clear for how long or how much was earned. The plaintiff's payout from Corrections Victoria was used as a deposit on the Citrus Avenue property. However, the plaintiff has acquired the deceased's share in the Rigel Road property by way of the laws of survivorship.

99 Finally and significantly, is the size of the estate. This is a small estate and has been rendered even smaller by virtue of this litigation. There may well be as little as $280,000 if costs of this litigation are taken from the estate. In this case, there are needy beneficiaries.

100 While the Court's discretionary power under s 96 of the Act is cast in very broad terms, it is important to remember that the courts do not intervene just because it would have been 'nice or good' of a testator to give a benefit. It is important to remember that the test is 'whether and if so what provision a wise and just testator would have thought is his moral duty to make in the interests of the claimant, having regard to community standards.' That assessment takes place with due regard to the freedom of testamentary disposition.

101 Whether a breach of moral duty has occurred is determined at the date of the testator's death having regard to the value of the estate at that time, the plaintiff's claim upon the bounty of the testator and competing moral claims of the actual beneficiaries in the will. The judgment made at the date of death is on the basis of facts, whether known or unknown to the testator, and all of the eventualities that might at the date, reasonably be an event foreseen by a testator who knew the facts. In the circumstances of this case under s 91(1), I do not consider that the deceased, had a responsibility to make provision for the plaintiff's maintenance and support. The factors which to my mind are critical are the size of the estate and the plaintiff's financial position as compared to that of the actual beneficiaries. I accept that the nature of the relationship is a positive factor in support of the plaintiff's claim. However, when this factor is weighed against the other relevant factors in s 91(4)(e)-(p), I do not consider it gives rise to a moral duty to make provision for the plaintiff.

102 Given all the circumstances of this case including the nature of the deceased and plaintiff's relationship, the plaintiff's financial need, the size of the estate and the financial position of the beneficiaries, I do not consider that the Court should interfere with the freedom of testation and I dismiss the plaintiff's application.

[2] Section 91(1) of the Act.

[3] Section 91(4) of the Act.

[4] Bosch v Perpetual Trustee Company (1938) AC 463, 479; Hughes v National Trustees, Executors and Agency Company of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134, 147; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 497.

[5] (1999) 3 VR 803.

[7] [2002] VSC 273.

[8] Schmidt v Watkins [2002] VSC 273 [22].

[9] [2004] VSCA 149; (2004) 10 VR 69 (Blair).

[13] Forsyth v Sinclair [2010] VSCA 147 [83].

[15] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124; Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; [1956] 95 CLR 494; Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 532.

[16] [1962] HCA 19; (1962) 107 CLR 9.

[19] Affidavit of Marilyn Joyce Semmler sworn 17 October 2014 [19].

[21] Affidavit of Marilyn Joyce Semmler sworn 17 October 2014 [23].

[22] Affidavit of Marilyn Joyce Semmler sworn 16 March 2015 [3].

[23] Affidavit of Pamela Christine Todd sworn 5 February 2015 [4].

[26] Joint document prepared in advance of setting down for trial in accordance with the direction of the Honourable Justice McMillan on 8 May 2015.

[27] Affidavit of Pamela Christine Todd dated 5 February 2015 [14].

[29] Affidavit of Marilyn Joyce Semmler, 16 March 2015 [30].

[31] Affidavit of Marilyn Joyce Semmler sworn 16 March 2015 [23]-[25].

[33] Affidavit of Lachlan Evan Todd sworn 11 August 2015, [2].

[34] Outline of plaintiff's legal submissions [17(e)].

[35] Outline of plaintiff's legal submissions [17(e)].

[36] Affidavit of Lisa Chantel Emanuel sworn 11 August 2015, [8].

[40] Affidavit of Matthew Grant Lewin sworn 24 August 2015, [7].

[42] Outline of closing submissions of the defendant [41].

[44] Outline of closing submissions of the defendant [38].

[45] Affidavit of Pamela Christine Todd sworn 5 February 2015 [14].

[50] Affidavit of Vincent Norman Todd sworn 5 February 2015, [11].

[53] Outline of plaintiff's legal submissions [17](f).

[56] Affidavit of Marilyn Joyce Semmler sworn 17 October 2014, [10].

[57] Outline of plaintiff's submissions [18].

[63] Affidavit of Janelle Maas sworn 26 August 2015 [4].

[65] Affidavit of Marilyn Joyce Semmler sworn 17 October 2014, [19].

[67] Affidavit of Marilyn Joyce Semmler sworn 16 March 2015, [12].

[68] Affidavit of Pamela Christine Todd sworn 5 February 2015, [8].

[69] Affidavit of Vincent Norman Todd sworn 5 February 2015, [10].

[73] [2002] VSC 273, [22] (footnote omitted).

[74] Vigolo v Bostin (2005) R13 ALR 692; [2005] HCA 11.

[75] Unger v Sanchez [2009] VSC 541, [78].

[76] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 135 (Fullagar and Menzies JJ).

[77] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 126.